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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and (iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables. (c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period. (d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows: (i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and (ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed. (e) For the purposes of this Section 1.4: (i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and (iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof. (f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows: (i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence); (ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and (iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that: (A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and (B) with 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 in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, (y) an amount equal to the fees set forth in 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 aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.101.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be reinvested Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), 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 Day (or any a day following on which the provision Commitment of an Exiting NoticePurchaser 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date day on which the Commitment of the provision of an such Exiting Notice Purchaser terminates, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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 on which the provision Commitment of an such Exiting NoticePurchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple the Majority of the Purchasers 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 by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), deposit on each Settlement Date into the account from time to time specified by the Administrator(for any Portion of Capital), Collections held for the benefit of the Purchasers each Purchaser pursuant to Sections 1.4(b1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if WESCO Swift or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Swift (or such Affiliate) that such right is revoked, WESCO Swift (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentCalculation Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail email communications or other electronic delivery of the amount of the Discount accrued with respect to such its Portion of Investment Capital during the related Yield Periodsuch Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to (based on the Discount and Fees accrued during such Yield Period 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 Investment Capital maintained by the Purchasers within such PurchasersPurchaser 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 feesFees, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, first if WESCO Swift or an Affiliate thereof is not the ServicerServicer or if Swift or an Affiliate thereof is the Servicer and a Termination Event shall have occurred and be continuing, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according to Investment (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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to (based on the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group 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 Investment Capital, (or, 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, second and third and fourth clauses of this Section 1.4(d)(iiclause (ii) to the Purchasers within its Purchaser Group ratably according (based on Discount and Fees and Capital, respectively), fourth, to Investment or, in the case LC Collateral Account for the benefit of the third clause LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of this Section 1.4(d)(ii), fees (not including cash collateral held in such LC Collateral Account equals 100% of the Servicing Fee)LC Participation Amount, fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Swift or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, hereunder and sixth, to the Servicer’s own account (if the Servicer is WESCO Swift or an Affiliate thereofthereof and a Termination Event is not continuing) in payment in full of the aggregate of each Purchaser Groupthe Purchaser’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital (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 each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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. 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, 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 andor, if such reduction or adjustment (x) causes in the Purchased Interest case of a Receivable which has been canceled and contemporaneously reissued pursuant 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 Credit and is continuingCollection Policy, the Seller shall negative difference (if any) between such canceled Receivable and such reissued Receivable, and shall, subject to Section 1.4(e)(v), immediately pay an amount equal to any and all such reduction or adjustment amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4(b);
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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 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 respect thereof 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 and their assigns and for application pursuant to Section 1.6(a1.4(b) 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(Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 (iSections 1.4(e)(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; andspecified an applicable Receivable;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller shall wish wishes to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two (2) Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment (Capital, and each such notice to include Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement Datedate specified in the Paydown Notice (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respany
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 (with the consent or at the direction of a Simple the Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of the Purchasers’ Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers’ Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple the Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date Purchasers’ Share 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))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” (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)Purchasers, such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit each Purchaser with respect to such Purchaser’s Portion(s) of the Purchasers Investment pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO Worthington or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Worthington (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) Worthington may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee. Within three Business Days of On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield PeriodPeriod then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, first if WESCO Worthington or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according to Investment Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third first and fourth second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orDiscount and Investment, in the case of the third clause of this Section 1.4(d)(ii)respectively, fees (not including the Servicing Fee), fifthfourth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO Worthington or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunderhereunder and, and sixthfifth, to the Servicer’s own account (if the Servicer is WESCO Worthington or an Affiliate thereof) in payment in full of the aggregate Aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days’ prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice to shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the (i) next Settlement DateDate with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (ii) such other date approved by the Administrator with at least five Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $50,000,000 and shall be in the aggregate for all Purchaser Groups an integral multiple of $1,000,000 (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment have been reduced to zero); and
(B) with resprespect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Worthington Industries Inc), Receivables Purchase Agreement (Worthington Industries Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved designated by the Administrator, which shall be an account maintained and controlled by the Administrator ifunless the Administrator otherwise instructs in its sole discretion), 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 application in accordance with clause (iii) the priority of payments set forth below;
(iii) if such day is a Termination Day (, all Collections on Pool Receivables that are received by the U.S. Servicer or the U.S. Borrower or received in any day following Lock-Box Account the provision customer of an Exiting Notice), set aside, segregate and hold in trust (and shall, record of which at the request of applicable Lock-Box Bank is the Administrator U.S. Borrower (with the consent or at the direction of each such Lock-Box Account, a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)“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” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 3 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, on 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 Administratordate, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) U.S. Servicer may release to the Seller U.S. Borrower from such Collections the amount (subject if any) necessary to Section 1.4(f)) for its own account any Collections in excess of: pay (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yi) the amounts that are required to be set aside pursuant to clause (i), purchase price for Receivables purchased by the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through U.S. Borrower on such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, date in accordance with the priorities set forth in Section 1.4(dterms of the U.S. Sale Agreement or (ii) amounts owing by the U.S. Borrower to the U.S. Originators under the Company Notes issued to the U.S. Originators (each such release, a “U.S. Collections Release”), deposit on . On each Settlement Date into Date, the account from time to time specified by U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall, distribute such Collections held for in the benefit following order of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in U.S. Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (it for the benefit of the Purchasers within such Purchaser Group) the Administratorimmediately preceding Interest Period (plus, each Indemnified Party and each Affected Personif applicable, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Servicing Fees payable to it for any prior 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 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 Period to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed has not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and distributed to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commenceU.S. Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the proposed date amount then due and owing), the U.S. Borrower’s Share of commencement all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such reduction and on each day thereafterpayments), plus, if applicable, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount U.S. Borrower’s Share of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Interest Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Lender or Credit Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (or, after the occurrence and shall, at during the request of the Administrator (with the consent or at the direction continuance of a Simple Majority Level 2 Ratings Event or an Event of Default, if so requested by the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Sale and Contribution Agreement or (ii) amounts owing by the Borrower to the Originators under the Intercompany Loans (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such requestpayments), there plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
(x) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists an Unmatured Termination Event or a Termination Event or if on such date, to the failure to so segregate reasonably could be expected to cause a Material Adverse EffectLenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iiiy) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator Termination Date, to each Lender (with ratably, based on the consent or aggregate outstanding Capital of each Lender at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administratorsuch time) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andsuch Lender at such time; or
(iiz) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, prior to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 Date, at any time when the Purchased Interest exceeds 100% election of the Borrower and in accordance with Section 2.02(d), to the payment of all or any Termination Event has occurred and is continuingportion of the outstanding Capital of the Lenders at such time (ratably, based on 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 aggregate outstanding Capital of each Lender 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 2 contracts
Sources: Receivables Financing Agreement (EnLink Midstream, LLC), Receivables Financing Agreement (EnLink Midstream Partners, LP)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Each Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved by the Administrator ifAdministrative Agent), at for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in any Lock-Box or Lock-Box Account; provided, however, that (A) the Servicers may from time to time release to the applicable SPV Entity from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by such SPV Entity on such date in accordance with the terms of such requestthe applicable Purchase and Sale Agreement and (B) the U.S. Servicer may, there exists an Unmatured Termination Event on any day and if so requested by the Seller, release to the Seller all 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 received on Sold Receivables in exchange for the other Collections set aside pursuant to this paragraph, shall equal the Seller designating on such day an equivalent amount necessary to reduce the Purchased Interest to 100%; provided, further, that if the Facility Termination Date has been extended (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 1.10 2.01(e), which new Sold Receivables will be automatically and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) immediately sold by the Seller to the Administrator, Administrative Agent (for the Seller and ratable benefit of the Servicer of such Purchaser’s refusal, Purchasers) pursuant to Section 1.102.01(b) upon such release on such day (each such release of Collections described in clauses (A) and (B) above, to extend its (or its Committed Purchaser’s) Commitment hereunder (an a “Exiting PurchaserRelease”) then such ); provided that, for the avoidance of doubt, any Collections that are not so Released shall not be reinvested and shall instead be held in trust by the Servicers for the benefit of such Purchaser the Secured Parties or segregated and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate held in a separate account approved by the Administrator) for Administrative Agent unless and until such Collections are Released or distributed on a Settlement Date, in each case, in accordance with the benefit terms hereof. On each Settlement Date, the Servicers (or, following its assumption of each Purchaser Group the entire remainder control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections (or in the case following order of an Exiting Purchaserpriority:
(i) first, an to each Lock-Box Bank, the amount equal of any fees, costs or expenses payable to such Purchaser’s ratable share 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 such Collections based on its Investmentthe applicable Lock-Box Agreement; provided, that solely the payment of such fees, costs and expenses from Collections on deposit in such Lock-Box Accounts on days other than Settlement Dates in accordance with the terms of the applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for any purpose;
(ii) second, to each Servicer for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date payment of the provision accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of an Exiting Notice until Servicing Fees payable for any prior Yield Period to the date extent such Purchaser’s Investment amount has not been paid in full; it being understood that if distributed to such day is also a Termination DayServicer) plus any applicable Canadian Sales Taxes thereon;
(iii) third, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by 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 in respect and other Purchaser Party for the immediately preceding Yield Period, plus, if applicable, the amount of this parenthetical any such Yield, Fees and thereafter Collections shall be set aside Breakage Fees payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser ratably or Purchaser Party;
(iv) fourth, as set forth in respect of its Investment clause (x) or (y) below, as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day applicable:
(x) prior to the occurrence of the type Maturity Date, to the Purchasers (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, an aggregate amount (if any) necessary to cause no Capital Coverage Deficit (determined using the Capital Coverage Amount calculated as of the last day of the preceding Fiscal Month assuming that the amount described in clause (aa)(ii) of the definition of “Termination DayCapital Coverage Amount” (or any day following the provision of an Exiting Noticeis zero) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeexist; andor
(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 such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicingMaturity Date, collecting and administering the Pool Receivables.
to each Purchaser (c) The Servicer shallratably, in accordance with the priorities set forth in Section 1.4(d), deposit based on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to at such Portion of Investment during the related Yield Period.
(dtime) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 2 contracts
Sources: Receivables Purchase Agreement (NCR Corp), Receivables Purchase Agreement (NCR Corp)
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, firstRetail Merchants, an amount equal to (i) the Aggregate 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 Investment 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 each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder product of such Collections. Such remainder 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 benefit net amount of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Special Discounts 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Program Fee Percentage shall be deemed paid by NMG 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 Bank within three (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a3) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodreport.
(d) The Servicer NMG shall distribute be responsible for allocating such remittances among the amounts described Retail Merchants as appropriate and Bank shall have no responsibility or liability in connection therewith (and at the times set forth) in Section 1.4(c)it being agreed that Bank has no obligation to accept NMG Charge Transaction Data directly from, 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 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 (any person other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (cNMG), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 2 contracts
Sources: Credit Card Program Agreement (Neiman Marcus Group Inc), Credit Card Program Agreement (Neiman Marcus, Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Secured Parties, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, be automatically reinvested, ratably, according to each Purchaser’s InvestmentCapital, 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 remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Secured Parties) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Facility Termination Date has been extended Administrator that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to Section 1.10 and this clause (ii) or (y) in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.10then Facility Termination Date, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) then or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group ), the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment Capital shall be recalculated taking into account amounts received by such Purchaser Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or or, in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each Purchaser Agent’s account, on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for such Purchaser Agent (for the benefit of the Purchasers its related Purchasers) pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Arch Sales (or such Affiliate) that such right is revoked, WESCO Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), clause (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield 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 Investment Capital maintained by such PurchasersPurchasers and all accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Discount and feesFees, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer’s own account Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment all Purchasers at such time) (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupGroup and all accrued Fees, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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 secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeeLC Collateral Account), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Arch Sales or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the Administrator for distribution ratably amounts payable to each Purchaser Agent in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) ), the Administrator, each Indemnified Administrator and any other Secured Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer’s own account Servicer (if the Servicer is WESCO Arch Sales or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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 Seller, any Affiliate of the Seller, or any Originator, the Transferor, the Servicer or any Affiliate of the Servicer, or any setoff setoff, netting of obligations or dispute between the Seller or Seller, any Affiliate of the Seller, or any Originator, the Transferor, the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if and shall immediately pay any and all 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 amounts in respect thereof 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 Secured Parties pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections l(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts in respect thereof 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 Secured Parties and 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 Purchaser1.4;
(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 the applicable Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (A) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such notice to include reduction for any reduction of the Aggregate Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
reduction or (iiiB) the Servicer Seller shall hold such Collections in trust remit to each Purchaser Agent’s account (for the benefit of each the relevant Purchasers in such Purchaser ratably according to its InvestmentAgent’s Purchaser Group), for payment in immediately available funds, an amount equal to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the desired amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000together with accrued and unpaid Aggregate Discount, in which case such reduction shall be in and Aggregate Discount to accrue through the amount required to reduce the Aggregate Investment to zero); and
(B) with respnext
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 Each Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved by the Administrator ifAdministrative Agent), at for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in any Lock-Box or Lock-Box Account; provided, however, that (A) the Servicers may from time to time release to the applicable SPV Entity from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by such SPV Entity on such date in accordance with the terms of such requestthe applicable Purchase and Sale Agreement and (B) the U.S. Servicer may, there exists an Unmatured Termination Event on any day and if so requested by the Seller, release to the Seller all 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 received on Sold Receivables in exchange for the other Collections set aside pursuant to this paragraph, shall equal the Seller designating on such day an equivalent amount necessary to reduce the Purchased Interest to 100%; provided, further, that if the Facility Termination Date has been extended (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 1.10 2.01(e), which new Sold Receivables will be automatically and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) immediately sold by the Seller to the Administrator, Administrative Agent (for the Seller and ratable benefit of the Servicer of such Purchaser’s refusal, Purchasers) pursuant to Section 1.102.01(b) upon such release on such day (each such release of Collections described in clauses (A) and (B) above, to extend its (or its Committed Purchaser’s) Commitment hereunder (an a “Exiting PurchaserRelease”) then such ); provided that, for the avoidance of doubt, any Collections that are not so Released shall not be reinvested and shall instead be held in trust by the Servicers for the benefit of such Purchaser the Secured Parties or segregated and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate held in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of Administrative Agent unless and until such Collections based are Released or distributed on its Investment; provideda Settlement Date, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shallcase, in accordance with the priorities set forth in Section 1.4(d), deposit on terms hereof. On each Settlement Date into Date, the account from time to time specified by the AdministratorServicers (or, Collections held for the benefit following its assumption of control of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of InvestmentLock-Box Accounts, the applicable Purchaser Agent will notify Administrative Agent) shall, distribute such Collections in the Servicer and the Administrator by e-mail following order of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination DayLock-Box Bank, the amount necessary of any fees, costs or expenses payable to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described such Lock-Box Bank by any SPV Entity in the second, third and fourth clauses of this Section 1.4(d)(iiconnection with maintaining its related Lock-Box Account(s) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within extent that such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (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 on deposit in such Lock-Box Accounts on days other than an Exception Account) (or as otherwise directed by Settlement Dates in accordance with the Administrator at such time) for the benefit terms of the Purchasers applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustmentany purpose;
(ii) if on any day any second, to each Servicer for the payment of the representations or warranties in Section 1(g) or accrued Servicing Fees payable for the immediately preceding Yield Period (m) of Exhibit III is not true with respect to any Pool Receivableplus, the Seller shall be deemed to have received on such dateif applicable, 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) Servicing Fees payable 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 prior Yield Period 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 extent such amount has not been distributed to such Servicer) plus any Purchaserapplicable Canadian Sales Taxes thereon;
(iii) except as provided in clause third, to each Purchaser and other Purchaser Party (i) or (iiratably, based on the amount then due and owing), or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of accrued and unpaid Yield and Fees and any Receivable shall be applied Breakage Fees due 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 Purchaser and to the extent the Administrator, any other Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust Party for the benefit of each Purchaser ratably according to its Investmentimmediately preceding Yield Period, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateplus, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; providedif applicable, that:
(A) the amount of any such reduction shall be Yield, Fees and any Breakage Fees payable for any prior Yield Period to the extent such amount has not less than $500,000 in the aggregate for all been distributed to such Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); andor Purchaser Party;
(Biv) with respfourth, as set forth in clause (x) or (y) below, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (NCR Atleos Corp), Receivables Purchase Agreement (NCR Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables --------------------- shall be administered by the Servicer Collection Agent, in accordance with the terms of this Agreement. The Seller Transferor shall provide to the Servicer Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shallit, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Transferees 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 deposit into the benefit of such Purchaser and applied in accordance with clause (iii) below;Administrative Agent's Account,
(iiii) if on each Settlement Date, from such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting PurchaserCollections, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day Yield and all reasonable and appropriate out-of-pocket costs and expenses of any fees owed to the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Administrative Agent pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence1.04(a);
(ii) on each Settlement Date, an amount equal to the proposed date of commencement of such reduction and on each day thereafter, Collection Agent Fee accrued but unpaid during the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reductionpreceding Settlement Period; and
(iii) the Servicer shall hold such Collections in trust for the benefit of on each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, from such Collections, an amount equal to the portion of Collections received during the preceding Settlement Period remaining after application pursuant to the preceding clauses (i) and (ii); provided that prior to the Facility Termination Date, the amount -------- to be deposited pursuant to this clause (iii) will not exceed the product of (A) a fraction, the numerator of which is the Required Balance and the Aggregate Investment denominator of which is the aggregate Outstanding Balance of the Related Contracts and (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:
(AB) the amount of any such reduction shall be not less than $500,000 in Collections; provided, however, that the aggregate for all Purchaser Groups amount deposited pursuant to this -------- ------- subsection (unless b) shall not exceed the sum of the Aggregate Investment at Capital of, and accrued Yield and Collection Agent Fee on, the time Receivables plus the aggregate of any other amounts then owed by the Transferor to any Transferee, the Administrative Agent or Affected Person hereunder. Notwithstanding the foregoing, unless a Trigger Event or Potential Trigger Event has occurred, for so long as the Originator is the Collection Agent, the Collection Agent shall not be required to set aside Collections, but may commingle the Collections with its own funds and make the deposits required to the Administrative Agent's Account pursuant to this paragraph (b) on the dates required. For so long as the Originator is the Collection Agent, the Collection Agent shall not be required to deposit the Collection Agent Fee to the Administrative Agent's Account as required by clause (ii) of this paragraph (b) but may retain such fee from the Collections remaining after the deposits required pursuant to clause (i) of this paragraph (b).
(i) Upon receipt of funds deposited into the Administrative Agent's Account pursuant to subsection (b)(i) or (b)(ii) above, the Administrative Agent shall distribute such funds, together with any funds received in respect of the PARCO Cap, as follows: Pro Rata to each Transferee in payment of accrued but unpaid Yield on the Capital of such reduction is less than $500,000, Transferee and to the Administrative Agent in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resprespect of any fees owed pursuant to
Appears in 2 contracts
Sources: Receivables Transfer Agreement (Ikon Office Solutions Inc), Receivables Transfer Agreement (Ios Capital Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Secured Parties, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, be automatically reinvested, ratably, according to each Purchaser’s InvestmentCapital, 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 remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Secured Parties) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Facility Termination Date has been extended Administrator that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to Section 1.10 and this clause (ii) or (y) in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.10then Facility Termination Date, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) then or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group ), the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment Capital shall be recalculated taking into account amounts received by such Purchaser Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or or, in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each Purchaser Agent’s account, on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for such Purchaser Agent (for the benefit of the Purchasers its related Purchasers) pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Arch Sales (or such Affiliate) that such right is revoked, WESCO Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), clause (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment Capital maintained by such PurchasersPurchasers and all accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Discount and feesFees, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer’s own account Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment all Purchasers at such time) (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupGroup and all accrued Fees, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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 secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeeLC Collateral Account), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Arch Sales or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the Administrator for distribution ratably amounts payable to each Purchaser Agent in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) ), the Administrator, each Indemnified Administrator and any other Secured Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer’s own account Servicer (if the Servicer is WESCO Arch Sales or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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 Seller, any Affiliate of the Seller, or any Originator, the Transferor, the Servicer or any Affiliate of the Servicer, or any setoff setoff, netting of obligations or dispute between the Seller or Seller, any Affiliate of the Seller, or any Originator, the Transferor, the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if and shall immediately pay any and all 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 amounts in respect thereof 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 Secured Parties pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections l(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts in respect thereof 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 Secured Parties and 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 Purchaser1.4;
(iii) except as provided in clause (i) or (ii), or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (A) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such notice to include reduction for any reduction of the Aggregate Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
reduction or (iiiB) the Servicer Seller shall hold such Collections in trust remit to each Purchaser Agent’s account (for the benefit of each the relevant Purchasers in such Purchaser ratably according to its InvestmentAgent’s Purchaser Group), for payment in immediately available funds, an amount equal to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the desired amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000together with accrued and unpaid Aggregate Discount, in which case such reduction shall be in the amount required and Aggregate Discount to reduce the Aggregate Investment to zero); and
(B) with respaccrue throug
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Arch Coal Inc), Receivables Purchase Agreement (Arch Coal Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time of such requestAdministrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), 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 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 Servicer or the Purchased Interest to 100%Seller or received in any Lock-Box or Collection Account or in any HSBC Exception Account; provided, furtherhowever, 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request so long as each of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 of Exhibit II 5.03 are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, on 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 Administratordate, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) Servicer may release to the Seller from such Collections the amount (subject if any) necessary to Section 1.4(f)) for its own account any Collections in excess of: pay (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yi) the amounts that are required to be set aside pursuant to clause (i), purchase price for Receivables purchased by the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through Seller on such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, date in accordance with the priorities set forth in Section 1.4(dterms of the applicable Purchase and Sale Agreement or (ii) amounts owing by the Seller to any Originator under any Intercompany Loan Agreement (each such release, a “Release”), deposit on . On each Settlement Date into Date, the account from time to time specified by the AdministratorServicer (or, Collections held for the benefit following its assumption of control of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Collection Accounts pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment8.03, the applicable Purchaser Agent will notify Administrative Agent) shall, distribute such Collections in the Servicer and the Administrator by e-mail following order of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Yield Period to the Servicer (if other than WESCO or an Affiliate thereof) have extent such amount has not been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, distributed to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) second, to the Administrative Agent for distribution to each Purchaser (ratably, based on the proposed date of commencement 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 reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Yield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Yield Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Purchaser or Purchaser Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Centric Brands Inc.), Receivables Purchase Agreement (Centric Brands Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) (for the benefit of each Purchaser Groupthe Purchasers), out of the Purchasers’ Share of such Collections, first, an amount equal to the Aggregate Purchasers’ aggregate amount of Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter Letters accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers’ Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investmentaggregate 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 benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Exiting Purchaser’s ratable share of such Collections based on its Capital shall not be reinvested (after the termination of its Commitment) and shall instead be held in trust for Administrator (for the benefit of such Purchaser Exiting Purchaser) and applied in accordance with clause (iii) below;,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the Administrator (for the benefit of the Purchasers) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers’ Share of the Collections (or in the case of an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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 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 (appropriate Person 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)Persons, such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment aggregate Capital (or other than the Investment Capital of the any Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment(other than an Exiting Purchaser) Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day plus (aa) all other amounts then due and all reasonable payable by the Seller under this Agreement to any Purchasers, the Administrator, and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesany other Indemnified Party or Affected Person.
(c) The Servicer shallshall deposit into each Purchaser Agent’s account (as designated by such Purchaser Agent to Servicer on or prior to the date hereof, in accordance with the priorities set forth in Section 1.4(dor such other account designated by such Purchaser to Servicer from time to time), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the applicable Purchaser, pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Administrator (for the benefit of the Purchasers such Purchaser) pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO CONSOL Energy or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO CONSOL Energy (or such Affiliate) that such right is revoked, WESCO CONSOL Energy (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser Agent or (its Purchaser Agent) will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute the amounts described Upon receipt of funds deposited pursuant to clause (and at the times set forth) in Section 1.4(cc), 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 the Administrator for distribution to each such Purchaser Agent ratably according to the Discount accrued during such Yield 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 Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to the Discount and feeswith 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of the Purchaser’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each such Purchaser Agent ratably according to Investment Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, second to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) third, to the Purchasers within its Purchaser Group ratably according to Investment or, Servicer in the case payment in full of the third clause aggregate of this Section 1.4(d)(ii)such Purchaser Group’s Ratable Share of all accrued Servicing Fees, fees (not including fourth, to the Servicing Fee)LC Collateral Account for the benefit of the LC Bank and the LC Participants, fifth, 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 Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion the Purchasers in its Purchaser Group’s percentage interest of Investment for all Purchaser Groups 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 (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the AdministratorPurchaser, each Purchaser Agent, the Administrator and any other Indemnified Party and each or Affected Person, in payment in full of Person any other amounts then owed thereto by the Seller or Servicer hereunder, and sixth, to ratably in accordance with 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 Feesamounts due thereto. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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, or the Servicer or any Affiliate of the Servicer 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 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 (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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, any Purchaser Agent Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Person Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Person Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each the Purchaser Agent Agents and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days’ Days prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount date of such proposed reduction and the proposed date on which such reduction will commence)reduction;
(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 benefit Purchasers ratably (based on their respective Portions of each Purchaser ratably according to its InvestmentCapital funded thereby), for payment to the Administrator (for the account of such Purchaser) Purchaser Agents on the next Settlement DateDate immediately following the current Settlement Period or such other date approved by the Purchaser Agents, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) Purchaser Agents only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Consol Energy Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request Administrative Agent during the continuance of the Administrator (with the consent or at the direction an Event of a Simple Majority of the Purchasers)Termination, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time 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 requestdate, there exists an Unmatured Termination Event or a Termination Event or if the failure Servicer may release to so segregate reasonably could be expected to cause a Material Adverse Effect) the Seller a portion of such Collections that(each such release of Collections, together with a “Release”). On each Settlement Date, the other Collections set aside pursuant to this paragraphServicer (or, shall equal following its assumption of control of the amount necessary to reduce Collection Accounts, 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 Administrative 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 shall distribute any such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or previously Released in the case following order of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Yield Period to the Servicer (if other than WESCO or an Affiliate thereof) have extent such amount has not been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, distributed to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereaftersecond, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (Administrative Agent, for the account of such Purchaser) each Purchaser and other Purchaser Party (ratably, based on the next Settlement Dateamount then due and owing), all accrued and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount unpaid Yield, Fees and Breakage Fees due to be paid to the Administrator (such Purchaser and other Purchaser Party for the account immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such Purchaser) only when in fact finally so paid; ; providedpayments), that:
(A) plus, if applicable, the amount of any such reduction shall be not less than $500,000 Yield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Yield Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Purchaser or Purchaser Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Warner Bros. Discovery, Inc.), Receivables Purchase Agreement (Warner Bros. Discovery, Inc.)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicers in accordance with the terms of this Agreement. The Each Seller shall provide to the Servicer Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Each Applicable Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the a Seller or Servicer, transfer (or cause to be transferred) such Collections from the ServicerLock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicers shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first, first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratablySellers, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investmentof 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 benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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 then all such Purchaser’s refusal, pursuant to Section 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such remaining Collections shall not be reinvested and shall instead be held in trust so set aside for the benefit of the Purchaser), rather than remitting all of such Purchaser and applied in accordance with clause (iii) belowremaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each the Purchaser Group Parties the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer Servicers for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on On each Settlement Date Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account from time to time specified designated by the Administrator, Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchasers Purchaser Parties pursuant to Sections 1.4(bSection 1.6(b) and 1.4(f)Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO no amounts shall be payable to Garland under clause (or such Affiliateii) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodabove.
(d) The Servicer shall distribute Upon receipt of funds deposited into any of the amounts described (and at the times set forth) in Purchaser’s Accounts pursuant to Section 1.4(c1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Accrual Period, second to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the aggregate most recently ended Discount Accrual Period, third to the Purchaser in payment of each outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Group’s Ratable Share Party in payment in full of accrued Servicing Fees so set asideany 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%, first, if WESCO or an Affiliate thereof is not the Servicer, following order of priority: first to the Servicer’s own account Purchaser in payment in full of all accrued Servicing Feesand unpaid Discount, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Groupand unpaid Used Fees, thirdUnused Fees and Breakage Costs, third to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersoutstanding Capital, fourth, and 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 Agent and any other Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the any Seller or any Servicer hereunderhereunder (including, and sixthwithout limitation, pursuant to the Servicer’s own account (if the Servicer is WESCO Section 1.9, Section 1.10, Section 3.1, or an Affiliate thereofSection 5.4) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Feesor under any other Transaction Document. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to occurrence of the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller Sellers for its their own account. Each Purchaser Agent hereby covenants and agrees to timely provide accounts in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedPurchased 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 revisiondiscount, cancellationrebate, allowancecredit, discount counterclaim, billing error or other adjustment made by the Seller or any Affiliate of the Seller, Originator or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, Originator or the Servicer or any Affiliate of the 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 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(gparagraphs (e), (f) or (mk) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such date, 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, and 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 breach payment to a particular Receivable or Receivables within thirty (x30) causes the Purchased Interest to exceed 100%, (y) occurs days after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event such payment has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to been received in 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 thatApplicable Servicer, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)then, 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 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the AdministratorAgent, any the Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, such Person the Agent or the Purchaser, 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 a Seller shall wish to cause the reduction of the Aggregate Investment Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Aggregate Investmentin part), the such Seller may do so as follows:
(i) the such Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two (x) one (1) Business Days’ Day’s prior written notice thereof for in the case of any reduction of Aggregate Investment the aggregate U.S. Capital or (such y) one (1) Business Day’s prior written notice to include in the case of any reduction of the aggregate CAD Capital, EUR Capital or GBP Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commence)commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in trust a Collection Account for the benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) ’s Account on the next 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 Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) ’s Account only when in fact finally so paid; ; providedprovided that, that:
(A) the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($500,000 1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in the aggregate excess thereof for all Purchaser Groups (unless the Aggregate Investment at the time reductions of such reduction is less than $500,000U.S. Capital, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respone 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:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (or, upon the occurrence and shall, at during the request of the Administrator (with the consent or at the direction continuance of a Simple Majority Ratings Event, if so requested by the Administrative Agent, promptly upon (but in no event later than one (1) Business Day after) receipt of the Purchasers)such request, segregate in a separate account approved by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreements or (ii) make any Restricted Payment permitted by Section 7.01(r) (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such requestpayments), there plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists an Unmatured Termination Event or a Termination Event or if on such date, to the failure to so segregate reasonably could be expected to cause a Material Adverse EffectLenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, to each Lender (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment in full of the aggregate outstanding Capital of such Lender at such time; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser or
(or its Purchaser AgentC) has provided notice (an “Exiting Notice”) prior to the Administratoroccurrence of the Termination Date, at the Seller election of the Borrower from time to time 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 Section 2.02(d), to the payment of all or any portion of the outstanding Capital of the Lenders at such time (iii) belowratably, based on the aggregate outstanding Capital of each Lender at such time);
(iiiiv) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shallfourth, to the extent representing a return on Aggregate Investment Credit Parties, the Affected Persons and the Borrower Indemnified Parties (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investmentratably, be reinvested in accordance with clause (ii) based on the day amount due and owing at such time), for the payment of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeall other Borrower Obligations then due and owing by the Borrower to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties; and
(ivv) release fifth, the balance, if any, to be paid to the Seller (subject to Section 1.4(f)) Borrower for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesaccount.
(cb) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time All payments or distributions to time specified be made by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day the Borrower and any other Person to the Lenders (or their respective related Affected Persons and the Administrator has not notified WESCO (Borrower Indemnified Parties) shall be paid or such Affiliate) that such right is revokeddistributed to the related Group Agent at its Group Agent’s Account. Each Group Agent, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, upon its receipt in the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Group Agent’s Purchaser Group) in payment in full Account of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by any such Purchasers; it being understood that each Purchaser Agent payments or distributions, shall distribute such amounts to the Purchasers applicable Lenders, Affected Persons and the Borrower Indemnified Parties within its Purchaser Group ratably according ratably; provided, that if such Group Agent shall have received insufficient funds to Discount pay all of the above amounts in full on any such date, such Group Agent shall pay such amounts to the applicable Lenders, Affected Persons and feesthe Borrower Indemnified Parties within its Group in accordance with the priority of payments set forth above, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed such category above for which there are insufficient funds to have received pay all amounts owing on such date, a Collection of such Pool Receivable in full, and if such breach ratably (x) causes based on 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 amounts in such Receivable shall automatically be conveyed categories owing to the Seller, without representation or warranty, but free and clear of each such Person in such Group) among all liens, security interests, charges and encumbrances created by or through the Administrator or any Purchaser;such Persons in such Group entitled to payment thereof.
(iiic) 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 If and to the extent the AdministratorAdministrative Agent, any Purchaser Agent Credit Party, any Affected Person or any Purchaser 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) Person any amount received by it on its behalf hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller Borrower and, accordingly, the Administrative Agent, such Credit Party, such Affected Person or such Borrower Indemnified Party, as the case may be, 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 2 contracts
Sources: Receivables Financing Agreement (OLIN Corp), Receivables Financing Agreement (OLIN 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time of such requestAdministrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), 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 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 Servicer or the Purchased Interest to 100%Borrower or received in any Lock-Box or Collection Account; provided, furtherhowever, 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request so long as each of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 of Exhibit II 5.03 are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, on 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 Administratordate, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) Servicer may release to the Seller Borrower from such Collections the amount (subject if any) necessary to Section 1.4(f)) pay the purchase price for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or Receivables purchased by 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 Borrower on such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, date in accordance with the priorities set forth in Section 1.4(dterms of the Sale and Contribution Agreement (each such release, a “Release”), deposit on . On each Settlement Date into Date, the account from time to time specified by the AdministratorServicer (or, Collections held for the benefit following its assumption of control of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of InvestmentCollection Accounts, the applicable Purchaser Agent will notify Administrative Agent) shall, distribute such Collections in the Servicer and the Administrator by e-mail following order of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the Servicer (if other than WESCO or an Affiliate thereof) have extent such amount has not been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, distributed to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) second, to each Lender and other Credit Party (ratably, based on the proposed date of commencement amount then due and owing), all accrued and unpaid Interest and Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Interest Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Lender or Credit Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Sources: Receivables Financing Agreement (Alliance Laundry Holdings Inc.), Receivables Financing Agreement (ALH Holding 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account in the name of the Borrower and approved by the Administrator ifAdministrative Agent), 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 for application in accordance with the other priority of payments set forth below, all Collections set aside pursuant to this paragraph, shall equal or Deemed Collections on Pool Receivables that are received by the amount necessary to reduce Servicer or the Purchased Interest to 100%Borrower or received in any Lock-Box or Collection Account; provided, furtherhowever, 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request so long as each of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 of Exhibit II 6.03 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 Administratorsatisfied, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) Servicer may release to the Seller Borrower from such Collections the amount (subject if any) necessary to Section 1.4(f)) pay the purchase price for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or Receivables purchased by the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, Borrower in accordance with the priorities set forth terms of the Receivables Purchase Agreement or to pay amounts in Section 1.4(drespect of any Subordinated Note (each such release, a “Reinvestment”), deposit on . On each Settlement Date into Date, the account from time to time specified by the AdministratorServicer (or, Collections held for the benefit following its assumption of control of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of InvestmentCollection Accounts, the applicable Purchaser Agent will notify Administrative Agent) shall, distribute such non-released Collections or Deemed Collections in the Servicer and the Administrator by e-mail following order of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administratorimmediately preceding Interest Period (plus, each Indemnified Party and each Affected Personif applicable, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Servicing Fees payable for any prior 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 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 Period to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any full amount received by it hereunder, such amount shall be deemed owed has not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and distributed to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commenceServicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the proposed date of commencement amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Interest Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Lender or Credit Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Sources: Receivables Financing Agreement (Rackspace Technology, Inc.), Receivables Financing Agreement (Rackspace Technology, Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s either its refusal, pursuant to Section 1.101.12, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Declining Notice or Exiting Notice; , as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), (x) on each Monthly Settlement Date into in the account from time to time specified by the Administrator, case of Collections held for the benefit each Purchaser with respect to such Purchaser’s Portion(s) of the Purchasers Capital pursuant to Sections 1.4(bclause (b)(i) and 1.4(f)(y) on each Weekly Settlement Date, in the case of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if WESCO FleetCor or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO FleetCor (or such Affiliate) that such right is revoked, WESCO FleetCor (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment Capital maintained by such PurchasersPurchasers 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 feesDiscount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Monthly Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO FleetCor or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount payable to Investment 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 such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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, third first and fourth second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orDiscount and Capital, in the case of the third clause of this Section 1.4(d)(ii)respectively, fees (not including the Servicing Fee), fifthfourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO FleetCor or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunderhereunder and, and sixthfifth, to the Servicer’s own account (if the Servicer is WESCO FleetCor or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the ServicerServicer or any other Person (including, if applicable, the originator of such Receivable), or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if and shall immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex F (each, a “Paydown Notice”) (A) at least two one Business Days’ Day prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $15,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least 3 Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $15,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Weekly Settlement DateDate with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in 100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless the entire Aggregate Investment at the time of such reduction is less than $500,000, in which case Capital after giving effect to such reduction shall be in the amount required to reduce the Aggregate Investment to zero)not less than $20,000,000; and
(B) with resprespect 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 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time 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 requestdate, there exists an Unmatured Termination Event (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 a Termination Event (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 if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with received on Sold Receivables in exchange for the other Collections set aside pursuant to this paragraph, shall equal the Seller designating an equivalent amount necessary to reduce the Purchased Interest to 100%; provided, further, that if the Facility Termination Date has been extended (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 1.10 2.01(e), which new Sold Receivables will be automatically and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) immediately sold by the Seller to the Administrator, Administrative Agent (for the Seller and ratable benefit of the Servicer of such Purchaser’s refusal, Purchasers) pursuant to Section 1.102.01(b) upon such release (each such release of Collections described in clauses (A) and (B) above, to extend a “Release”). On each Settlement Date, the Master Servicer (or, following its (or its Committed Purchaser’sassumption of control of the Collection Accounts, the Administrative Agent) Commitment hereunder (an “Exiting Purchaser”) then shall, distribute such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case following order of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Master Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administratorimmediately preceding Yield Period (plus, each Indemnified Party and each Affected Personif applicable, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 Servicing Fees payable for 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 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 prior Yield Period to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed has not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and distributed to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commenceMaster Servicer);
(ii) second, to the Administrative Agent for distribution to each Purchaser and other Purchaser Party (ratably, based on the proposed date of commencement 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 reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Yield and Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Yield Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Purchaser or Purchaser Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Nabors Industries LTD), Receivables Purchase Agreement (Nabors Industries LTD)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any the Facility Termination Day Date and current computations of the Purchased InterestInterest (and the components thereof).
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with after the consent occurrence of an Unmatured Termination Event or at the direction of a Simple Majority of the Purchasers)Termination Event, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the sum of (w) the Aggregate Discount accrued through such day for each Portion portion of Investment and Capital not previously set aside, second, (x) an amount equal to the fees set forth in each Purchaser Group Fee Letter owing to the Purchasers and the Administrator accrued and unpaid through such day, and 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 aggregate of each Purchaser Group’s Ratable Share of Agents, the Servicing Fee accrued through such day Administrator, and not previously set asideany other Indemnified Party or Affected Person;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder the Collections not set aside pursuant to clause (b)(i) of this Section 1.4 shall, to the extent representing a return on the Aggregate Investmentof Capital, ratably, be automatically Reinvested according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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%; provided% and (y) cause the Aggregate Capital to not exceed the Purchase Limit, furtheras applicable, that if the Facility Termination Date has been extended pursuant which amount shall be deposited ratably to Section 1.10 and any Purchaser (or its each Purchaser Agent) has provided notice ’s account (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 its related Purchasers and to be applied in reduction of their respective Capital) on the next Settlement Date in accordance with clause (iii) belowSection 1.4(c);
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) ), for the benefit of each Purchaser Group Group, the entire remainder of the Collections not set aside pursuant to clause (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 b)(i) of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated))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” (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), then such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested Reinvested in accordance with clause (ii) above on the next day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeto 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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesday.
(c) The On the fifth (5th) Business Day of each calendar month, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each portion of Capital during the previous Settlement Period. On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of the Purchasers pursuant to Sections 1.4(bits related Purchasers) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, however, that represents if the aggregate 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 Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, maintained by the applicable Purchaser Agent will notify 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 Administrator by e-mail of extent the amount of the Discount accrued with respect to such Portion of Investment during the related Yield PeriodPurchased Interest exceeds 100%.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), ) on each Settlement Date as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%: first, first to the Administrator for distribution 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 ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Aggregate Capital pursuant to clause (f) below, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersthe related reduction in Aggregate Capital; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount in accordance with each such Purchaser’s Capital; 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)fifth, to the Servicer’s Seller for its own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andaccount.
(ii) if such distribution occurs on a Termination Day or on a any day when on which the Purchased Interest exceeds 100%, : first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued , the Servicing Fees, secondFee, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for extent accrued and unpaid through the benefit last day of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all immediately preceding Settlement Period until such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been are paid in full, to the Administrator for distribution ratably extent not otherwise netted out from Collections by the Servicer; second, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group) ), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, such accrued fees owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital) and to the Administrator; fourth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of each Purchaser’s Capital (or if such day is not a Termination Day but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%) it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect thereto have been reduced to zero (or the Aggregate Capital has been reduced to the extent necessary to cause the Purchased Interest not to exceed 100%), and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts Aggregate Unpaids owed thereto by the Seller or Servicer hereunder, hereunder (other than contingent indemnification obligations); and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted canceled as a result of any defective(x) without duplication, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount rebate, dilution, discount, or other adjustment (including, without limitation, an extension or adjustment made pursuant to the applicable Credit and Collection Guidelines) made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate Originator, including in connection with the cancellation and reissuance of the Servicerany Pool Receivable, or (y) any setoff set-off or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer 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 reduction, adjustment, cancellation or adjustment anddispute (which, if such reduction or adjustment (x) causes in the Purchased Interest to exceed 100%case of a cancellation and reissuance of any Pool Receivable, (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 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 reduction or adjustment to day is not a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at Termination Day, hold any and all such time) amounts in trust for the benefit of each Purchaser Group and, on the Purchasers for application pursuant to following Settlement Date, apply such amounts in accordance with this Section 1.6(a1.4 or (y) if such day is a Termination Day, within one two (2) Business Day 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 (mn) of Exhibit III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall be deemed shall, subject to have received on such dateSection 1.4(e)(v), a Collection of such Pool Receivable in full, and (1) if such breach (x) causes the Purchased Interest to exceed 100%day is not a Termination Day, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at hold any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay the amount of all such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) amounts in trust for the benefit of each Purchaser Group and, on the Purchasers for application pursuant to Section 1.6(a) within one Business Day of following Settlement Date, apply such breach; provided that, upon payment in full by the Seller of any Pool Receivable amounts in accordance with this Section 1.4(d)(ii1.4 or (2) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts from its own funds in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 or the relevant Contractapplicable Law, all Collections received from an Obligor of any Pool Receivable shall be applied to the Pool Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and;
(iv) if and to the extent the Administrator, any Purchaser Agent Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Person Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Person 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 time, the Seller shall wish may elect to cause the a reduction of Aggregate Investment Capital in accordance with this clause (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investmentf), the . The Seller may do so as follows:
(i) the Seller shall give deliver to the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (the “Paydown Notice”) at least two Business Days’ prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment (such Capital, which notice to 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 benefit of each Purchaser ratably according to its InvestmentPurchaser, for payment to the Administrator (each Purchaser Agent for the account benefit of such Purchaser) Purchaser on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) a Purchaser Agent only when in fact finally so paid; ; provided, that:
that (Ax) 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 $500,000 in the aggregate for all Purchaser Groups 10,000,000 (unless the entire Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction Capital shall be in the amount required to reduce the Aggregate Investment have been reduced to zero); and
and (By) with respthe Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Energy Corp.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser GroupIssuer, 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 Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Issuer (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date Issuer's Share 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))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” (or any day following the provision of an Exiting Notice) " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; 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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respout-
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Kulicke & Soffa Industries Inc), Receivables Purchase Agreement (Royal Appliance Manufacturing Co)
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 Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)24 30 Agent, segregate in a separate account approved by the Administrator 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 Effectsegregate) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder Investors or the Banks that hold such Receivable Interest the percentage of such Collections. Such remainder shallCollections represented by such Receivable Interest, to the extent representing a return on the Aggregate Investmentof Capital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time recomputation 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 Receivable 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) below2.03;
(iii) if such day is a Termination Liquidation Day (for any one or any day following the provision of an Exiting Notice)more Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser Group Investors or the entire remainder of the Collections Banks that hold such Receivable Interests (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 x) if such day is also a Termination DayLiquidation Day for less than all of the Receivable Interests, the percentage of such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received Collections represented by such Purchaser Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in respect excess of this parenthetical and thereafter Collections shall be set aside for the Capital of such Purchaser ratably in respect of its Investment (as recalculated)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” (or any day following the provision of an Exiting Notice) 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 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)Agent, such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesremaining Collections.
(c) The Servicer shallCollection Agent shall deposit into the Agent's Account, in accordance with on the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administratorfor each Receivable Interest, Collections held for the benefit of Investors or the Purchasers pursuant Banks that relate to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Receivable Interest pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period2.04(b).
(d) The Servicer Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Investors or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respthe
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Account for the benefit of each Purchaser GroupInvestor, out of the percentage of such CollectionsCollections represented by the Purchased Interest of such Investor, first, first an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital of such Purchased Interest and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group 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 aggregate of each Purchaser Group’s Ratable such Investor's Share of the Servicing Fee accrued through such day and not previously set aside;; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupsuch Investor, the remainder of the percentage of such Collections. Such remainder shall, represented by its Purchased Interest, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Investor shall 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 automatically recomputed 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) below1.3;
(iii) if such day is a Termination Day Day, (or any day following A) set aside and retain in the provision of an Exiting Notice)Collection Account for such Investor, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the percentage of the Collections (or in represented by the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share Purchased Interest of such Collections based on its InvestmentInvestor; providedprovided that, that solely for so long as the purpose of determining such Purchaser’s ratable share of such CollectionsFacility Termination Date has not occurred, 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 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” (or any day following the provision of an Exiting Notice) and, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respin
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator if, at the time of such request, there exists exist an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, ------------- remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Issuer (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respthe
Appears in 1 contract
Sources: Receivables Purchase Agreement (KPMG Consulting Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, transfer such Collections from the ServicerLock-Box Accounts and deposit such Collections into the Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Account for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the applicable Indemnified Party or Affected Person, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first, first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Investment and not previously set aside, aside and second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the 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 aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Indemnified Party or Affected Person pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investmentof 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 benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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 then all such Purchaser’s refusal, pursuant to Section 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such remaining Collections shall not be reinvested and shall instead be held in trust so set aside for the benefit of the Purchaser), rather than remitting all of such Purchaser and applied in accordance with clause (iii) belowremaining Collections to the Seller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each the Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on On each Settlement Date Date, the Servicer shall (i) deposit into the Purchaser’s Account (or such other account from time to time specified designated by the Administrator, Agent) all Collections held on deposit in the Collection Account for the benefit of the Purchasers pursuant to Sections 1.4(b) Purchaser, the Indemnified Parties and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside any other Affected Persons pursuant to Section 1.4(b)(i1.6(b) that represents and Section 1.6(f) and (ii) deposit to the aggregate Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of each Purchaser Group’s Ratable Share Section 1.6(b)(i) in respect of the accrued Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the an amount of the Discount accrued with respect equal to such Portion of Investment during the related Yield Periodaccrued Servicing Fee.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described (and at the times set forth) in Purchaser’s Account pursuant to Section 1.4(c1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Accrual Period, second to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of all unpaid Utilization Fees, Commitment Fees and Breakage Costs accrued during the aggregate most recently ended Discount Accrual Period, third to the Purchaser in payment of each outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser Group’s Ratable Share in payment of accrued Servicing Fees so set aside, 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%, first, if WESCO or an Affiliate thereof is not the Servicer, following order of priority: first to the Servicer’s own account Purchaser in payment in full of all accrued Servicing Feesand unpaid Discount, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Groupand unpaid Utilization Fees, thirdCommitment Fees and Breakage Costs, third to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersoutstanding Capital, fourth, fourth to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if any other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each or 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 hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing FeesSection 5.4). After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to occurrence of the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide account in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedsuch 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 revisiondiscount, cancellationrebate, allowancecredit, discount counterclaim, billing error or other adjustment made by the Seller or any Affiliate of the Seller, any Originator or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, any Originator 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(gparagraphs (e), (f) or (mk) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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, and 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 breach payment to a particular Receivable or Receivables within thirty (x30) causes the Purchased Interest to exceed 100%, (y) occurs days after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event such payment has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to been received in 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 thatServicer, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)then, 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 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the AdministratorAgent, any the Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment the Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Aggregate Investmentin part), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two (x) five (5) Business Days’ prior written notice thereof for in the case of any reduction of Aggregate Investment the Capital to zero (such $0) or (y) one (1) Business Day’s prior written notice to include in the case of any partial reduction of the Capital, in 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 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 benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) ’s Account on the next 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 Servicer to the Purchaser, the Agent and each other Indemnified Party or Affected Person hereunder) in accordance with Section 1.6(c), and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) ’s Account only when in fact finally so paid; ; providedprovided that, that:
(A) the amount of any such reduction shall be not less than one million dollars ($500,000 in 1,000,000) and shall be an integral multiple of one hundred thousand dollars ($100,000), and the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case entire Capital after giving effect to such reduction shall be in not less than one million dollars ($1,000,000) unless the amount required to reduce the Aggregate Investment entire Capital shall have been reduced to zero); and
(B) with resp.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day Business Day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer or are deposited into the ServicerLock-Box Accounts, transfer such Collections therefrom and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside and hold in trust (and shall, at within the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Account for the benefit of each Purchaser Groupthe Issuer, out of the percentage of such CollectionsCollections represented by the Purchased Interest, first, first an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set asidetransferred, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter all accrued and unpaid through such dayFees not previously transferred, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;transferred; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the percentage of such Collections. Such remainder shall, represented by the Purchased Interest, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 have calculated the Purchased Interest on such day, and if such Purchased Interest shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not reinvest, be remitted to the Seller but shall be set aside and hold in trust within the Collection Account for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Issuer in accordance with clause paragraph (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at aside within the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser Group the Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date percentage of the provision of an Exiting Notice until Collections represented by the date such Purchaser’s Investment Purchased Interest; provided that so long as the Facility Termination Date has been paid in full; it being understood that not occurred 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 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” (or any day following the provision of an Exiting Notice) and, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are 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 transferred amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 of event the Servicing Fee accrued and unpaid through such day and Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of the such Servicer for of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Administrator), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit of the Purchasers Issuer pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO BAX or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO BAX (or such Affiliate) that such right is revoked, WESCO BAX (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)
(i) that represents the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentPeriod, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by Capital during such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Yield Period or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect portion thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Settlement Procedures. (a) The collection TheSo long as the Administrative Agent has not taken dominion of the Pool Receivables shall be administered by the Collection Accounts, he 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion; it being understood and agreed, that, unless and until the Administrative Agent gives such instructions, the Servicer shall not be required to hold Collections in a separate deposit account containing only such Collections, and may commingle such Collections with its own funds, so long as the Servicer is able, on each Business Day and on an equitable and consistent basis, to identify which portion of amounts credited to such requestdeposit account are Collections), there exists an Unmatured Termination Event for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or a Termination Event the Borrower or received in any Lock-Box or Collection Account; provided, however, that (A) if the failure Administrative Agent has not taken dominion of the Collection Accounts, so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to so segregate reasonably could the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under any Intercompany Loan Agreement (each such release, a “Release”). and (B) if the Administrative Agent has taken dominion of the Collection Accounts, any such Release shall be expected to cause a Material Adverse Effectmade only in accordance with Section 9.03(c). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:; provided, however, that if the Administrative Agent has taken dominion of the Collection Accounts, then on the Settlement Date, the Administrative Agent will direct a portion of such Collections that, together sufficient to make all payments due by the Borrower on such Settlement Date in accordance with the below priorities for payment: (i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer); (ii) second, to each Lender and other Collections Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such 41762333169 19631658 762333169 19631658 Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party; (iii) third, as set 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 Borrowing Base Deficit exists on such date, to the Lenders (ratably, based on the aggregate outstanding Loan Amount of each Lender at such time) for the payment of a portion of the outstanding Aggregate Loan Amount at such time, in an aggregate amount equal to the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%zero ($0); provided, further, that if (y) on and after the Facility occurrence of the 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 1.10Date, to extend its each Lender (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ratably, based on the aggregate outstanding Loan Amount of each Lender at such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administratortime) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Loan Amount of each Purchaser Group’s Ratable Share such Lender at such time; or (z) prior to the occurrence of accrued Servicing Fees so set asidethe Termination Date, and
(ii) if such distribution occurs on a Termination Day or on a day when at the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not election of the ServicerBorrower and in accordance with Section 2.02(d), to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit or any portion of the relevant Purchasers within outstanding Aggregate Loan Amount at such Purchaser Agent’s Purchaser Grouptime (ratably, based on the aggregate outstanding Loan Amount of each Lender at such time); (iv) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination DayCredit Parties, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller Persons and the Servicer to each Purchaser GroupBorrower Indemnified Parties (ratably, 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 based on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, 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 due 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 owing at such time) ), for the benefit payment of all other Borrower Obligations then due and owing by the Purchasers for application pursuant Borrower 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 (m) of Exhibit III is not true with respect to any Pool ReceivableCredit Parties, the Seller shall be deemed to have received on such date, a Collection of such Pool Receivable in full, Affected Persons and if such breach the Borrower Indemnified Parties; and (xv) 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 continuingfifth, 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 thatbalance, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)if any, 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (Borrower for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respits own account.
Appears in 1 contract
Sources: Receivables Financing Agreement (Compass Minerals 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 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.10this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;.
(iii) if such day is a Termination Day or a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied (or any day following the provision of an Exiting Noticea 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its InvestmentCapital; 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 Investment or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting 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 Investment or Exiting Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination DayDay 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 Investment 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 Investment Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day or any day on which the conditions set forth in Section 2 of the type described in clause (a) of the definition of “Termination Day” Exhibit II to this Agreement are not satisfied (or any day following the provision of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Administrator and a Simple Majority of the Purchasers Purchaser Agents (or in the case of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Exiting 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 Purchaser, as the case may be, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Exiting Notice; Purchaser Termination Date, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into in the account from time to time specified by the Administrator, case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the benefit amount of Collections then held for the related Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of this Section 1.4; provided, that if WESCO CB or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO CB (or such Affiliate) that such right is revoked, WESCO CB (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such 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 Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO CB or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount payable to Investment 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 such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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, third first and fourth second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orDiscount and Capital, in the case of the third clause of this Section 1.4(d)(ii)respectively, fees (not including the Servicing Fee), fifthfourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO CB or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts then due and payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed then due and payable thereto by the Seller or Servicer hereunderhereunder and, and sixthfifth, to the Servicer’s own account (if the Servicer is WESCO CB or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the then due and payable Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts then due and payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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 rejected or foreclosed returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an 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 Lebanon Receivables), made in accordance with the Credit and Collection Policies), the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if and shall immediately pay any and all 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 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;
(other than an Exception Accountii) if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Pool Receivable at the time a Purchase was made with respect to such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.6(a1.4 (Collections deemed to have been received pursuant to clause (i) within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gthis paragraph (e) or (m) of Exhibit III is not true with respect are hereinafter sometimes referred to any Pool Receivable, the Seller shall be deemed to have received on such 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“Deemed Collections”), 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 a manner consistent with the oldest application and allocation procedures employed by the Servicer at such Receivable, unless such Obligor designates in writing its payment for application to specific Receivablestime; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days’ Days prior written notice thereof for any to the date of such reduction of Aggregate Investment (and each such notice to include Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) that the amount of any such reduction shall be not less than $500,000 200,000 (to be applied pro rata in the aggregate for all Purchaser Groups (unless accordance with the Aggregate Investment at Capital outstanding) and the time of such reduction is less than $500,000, in which case entire Aggregate Capital after giving effect to such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respnot less than $20,000,000.
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 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the sum of (i) the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, (ii) an amount equal to the fees set forth in each Purchaser Group the Fee Letter Letters accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, (iii) an amount equal to the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate InvestmentCapital, be automatically reinvested, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested 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 Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that has either (or i) provided notice to its Purchaser Agent) has provided notice (an “Exiting Notice”) to Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.10then-current Scheduled Termination Date, to extend its (or its Committed Purchaser’s) Commitment hereunder or (ii) otherwise not affirmatively consented to any request by the Seller to extend the then-current Scheduled Termination Date (in either case, an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital and Pro Rate Share of the Adjusted LC Participation Amount) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting NoticeNon-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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group ), the entire remainder of the such Collections (or in the case of an Exiting Purchaserany Non-Extension Day that is not also a Termination Day, an amount equal to such Purchaser’s the Exiting Purchasers’ ratable share of such Collections based on its Investmenttheir respective Capital; provided, however, that solely for the purpose purposes of determining such Purchaser’s Exiting Purchasers’ ratable share of such Collections, such Purchaser’s Investment Exiting Purchasers’ Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice first Non-Extension Day until the date such Purchaser’s Investment Exiting Purchasers’ Capital has been paid in full; it being understood that if such day is also a Termination Day occurs following a Non-Extension Day, such Exiting Purchaser’s Investment Purchasers’ Capital shall be recalculated taking into account amounts received by such Purchaser Exiting Purchasers in respect of this parenthetical and thereafter and, thereafter, Collections shall be set aside for such Purchaser all Purchasers ratably in respect of its Investment their respective 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 an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by each Purchaser Agent on each Settlement Datein writing by the Administrator, Collections held for such Purchaser Agent (for the benefit of its relatedthe Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the Purchasers amount of Collections then held for such Purchaser Agent (for the benefit of its relatedthe Purchasers) pursuant to Sections 1.4(b1.4(b)(ii) and 1.4(f1.4(b)(iii); provided, that if WESCO Lyondell Chemical or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Lyondell Chemical (or such Affiliate) that such right is revoked, WESCO Lyondell Chemical (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator telephonically, by e-electronic mail or by facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the such related Yield Settlement Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), ) as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Day:
(A) first, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount and Fees accrued during such Yield 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 Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by suchthe Purchasers within such Purchaser Agent’s Purchaser Group and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively; and
(B) second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside; and
(ii) if such distribution occurs on a Termination Day:
(A) first, to the Servicer (if other than Lyondell Chemical or an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second, to the Administrator for distribution to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of Group and all such accrued fees Fees;
(other than Servicing FeesC) with respect to each Portion of Investment maintained by such Purchasers, fourththird, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in 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%)Capital; it being understood that each Purchaser Agent shall distribute the thesuch amounts described in the secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment orDiscount, in Fees and Capital, respectively;
(D) fourth, to the case LC Collateral Account for the benefit of the third clause LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of this Section 1.4(d)(ii), fees 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;
(not including the Servicing Fee), E) fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Lyondell Chemical or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably 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 within in such Purchaser Agent’s Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and ; and
(F) sixth, to the Servicer’s own account Servicer (if the Servicer is WESCO Lyondell Chemical or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the Expected LC Fees is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each 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 provide and accurate responses to each of the Administrator with all 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, any cash or other discount, or any revisionfailure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, cancellation, allowance, discount (II) any change in or cancellation of any of the terms of such contract or invoice or any other adjustment made by the Seller or any Affiliate of the SellerOriginator, or the Servicer or the Seller which reduces the amount payable by the Obligor on the related Receivable, (III) any Affiliate of the Servicerrebates, 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 Sellersame or a related transaction or an unrelated transaction) or (B) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the Servicer or any Affiliate discharge in bankruptcy of the Servicer and an ObligorObligor 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 reduction, adjustment, cancellation or adjustment 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, if 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 (x) causes the Purchased Interest to exceed 100%adjustment, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at pay 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 all such reduction or adjustment 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;
(other than ii) if (x) the representation and warranty in Section l(j) of Exhibit III is not true on the day such representation and warranty is made or deemed made, (y) if any of the representations or warranties in Section 1(r) of Exhibit III is not true with respect to any Pool Receivable or (z) the Obligor with respect to any Pool Receivable is designated an Exception AccountExcluded Obligor in accordance with Section 4.2(b) on any day, the Seller shall be deemed to have received a Collection of the full Outstanding Balance of such Pool Receivable or such Excluded Receivable existing on the date of such designation, as applicable, and shall, within two (2) Business Days of such designation or of the Seller or the Servicer having knowledge or notice of any such inaccuracy, as applicable, subject to Section 1.4(e)(v), pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.6(a1.4(b) within one Business Day of such reduction (Collections deemed to have been received pursuant to Section 1.4(e)(i) or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III is not true with respect are hereinafter sometimes referred to any Pool Receivable, the Seller shall be deemed to have received on such 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“Deemed Collections”), 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 (iSection 1.4(e)(i) or and (ii), ) or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing that its payment for application is to be applied to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(v) so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, but only so long as the Purchased Interest does not exceed 100% after giving effect to such adjustment.
(f) If at any time the Seller shall wish to cause the a voluntary reduction of Aggregate Investment (but not to commence the liquidation, in whole or reduction to zero, in part) of the entire Aggregate Investment)Capital, the Seller may do so as follows:
(i) the Seller shall give the Administrator, Administrator and each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction in substantially the form of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.10this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;.
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Noticea 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its InvestmentCapital; 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 Investment or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting 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 Investment 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 Investment 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 Investment 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 an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Administrator and a Simple Majority of the Purchasers Purchaser Agents (or in the case of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Exiting 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 Purchaser, as the case may be, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, 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 such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into in the account from time to time specified by the Administrator, case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the benefit amount of Collections then held for the related Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of this Section 1.4; provided, that if WESCO Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Triumph (or such Affiliate) that such right is revoked, WESCO Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Day, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such 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 Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, first if WESCO Triumph or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to Investment 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 such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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, third first and fourth second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orDiscount and Capital, in the case of the third clause of this Section 1.4(d)(ii)respectively, fees (not including the Servicing Fee), fifthfourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Triumph or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts then due and payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed then due and payable thereto by the Seller or Servicer hereunderhereunder and, and sixthfifth, to the Servicer’s own account (if the Servicer is WESCO Triumph or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator 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. 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, 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 and shall immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to this Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $20,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 1,000,000 or an integral multiple of $100,000 in the aggregate for all Purchaser Groups excess thereof (unless to be applied pro rata in accordance with the Aggregate Investment at Capital outstanding) and, on and after August 29, 2008, the time of such reduction is less than $500,000, in which case entire Aggregate Capital after giving effect to such reduction shall be in not less than $75,000,000 and the amount required to reduce the Aggregate Investment to zero)Purchased Interest shall not exceed 100%; and
(B) with resprespect 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the SellerSeller (or the Originators on behalf of the Seller to satisfy obligations of the Seller under the Purchase and Sale Agreement), ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, be automatically reinvested, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested 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 Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”, which, for the avoidance of doubt shall not have any effect until the then Scheduled Commitment Termination Date) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.10then Scheduled Commitment Termination Date, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable, (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group ), the entire remainder of the such Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment Capital shall be recalculated taking into account amounts received by such Purchaser Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment 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 an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables, plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account, no later than noon (New York time) on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO ▇▇▇▇▇ Corning Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO ▇▇▇▇▇ Corning Sales (or such Affiliate) that such right is revoked, WESCO ▇▇▇▇▇ Corning Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three On or prior to the Business Days of the last day of Day immediately preceding each Yield Period with respect to any Portion of InvestmentSettlement Date, the applicable each Purchaser Agent will notify the Servicer and the Administrator no later than noon (New York time) telephonically, by e-electronic mail or by facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield PeriodSettlement Period or portion thereof and thereafter no later than 5:00 p.m. (New York time) on such day the Administrator will notify the Servicer telephonically, by electronic mail or by facsimile of such amounts.
(d) The Servicer Administrator shall distribute the amounts described in clause (and at c) above promptly following receipt of such funds deposited into the times set forthAdministration Account (but no later than 5:00 p.m. (New York time)) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount and Fees accrued during such Yield 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 Investment Capital maintained by such PurchasersPurchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Discount and feesFees, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment all Purchasers at such time) (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupGroup and all accrued Fees, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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 secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the ratable benefit of the ▇▇ ▇▇▇▇▇, the amount necessary to cash collateralize the Aggregate LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the Aggregate LC Participation Amount (or, in if such day is not a Termination Day, the case 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 third clause of this Section 1.4(d)(iiAggregate LC Participation Amount), fees (not including the Servicing Fee), and fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the Administrator for distribution ratably amounts payable to each Purchaser Agent in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the Aggregate LC Participation Amount is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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, 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%, % or (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 continuingDate, 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 and their assigns and for application pursuant to Section 1.6(a1.4 within two (2) within one Business Day Days of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gSections l(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in fullfull and, 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 or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuingDate, the Seller shall pay the amount of any and all such deemed Collection amounts in respect thereof to a Lock-Box an Account (other than an Exception 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(a1.4 within two (2) within one Business Day Days of knowledge 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction in substantially the form of Aggregate Investment Annex C (each, a “Paydown Notice”) no later than noon (New York time) on the Business Day prior to the date of such notice to include reduction, such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to the Administrator in the Administration Account (for the benefit of the Purchasers), no later than noon (New York time), in immediately available funds, an amount equal to the desired amount of such reduction; and, and thereafter the Administrator shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) such Purchaser Agent’s ratable amount, based on such Purchaser Agent’s Purchasers’ portion of the Aggregate Capital reduced thereby;
(iii) in the case of clause (ii)(A) above, the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser ratably according to its Investment, based on their respective Portions of Capital funded thereby) for payment to the Administrator (for the account benefit of such each Purchaser) by deposit in the Administration Account on any Business Day designated by the next Settlement DateServicer in consultation with the Seller upon two Business Days’ notice thereof by the Servicer to the Administrator and each Purchaser Agent, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for on behalf of the account of such PurchaserPurchasers) only when in fact finally so paid; and
(iv) any such amounts owing by the Seller pursuant to Section 1.8 related to such reduction shall be deposited into the Administration Account pursuant to Section 1.4(c) on the Settlement Date immediately following the date of such reduction; provided, that:
(A) that the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction 2,500,000 and shall be an integral multiple of $250,000 in the amount required to reduce the Aggregate Investment to zero); and
(B) with respexcess 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved designated by the Administrator, which shall be an account maintained and controlled by the Administrator ifunless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Account the customer of record of which at the time of applicable Lock-Box Bank is the Borrower (each such requestLock-Box Account, 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%“Lock-Box Account”); provided, furtherhowever, that so long as each of the conditions precedent set forth in Section 3 of Exhibit II are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the Facility Termination Date has been extended purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Loans made by the Originators (each such release, a “Release”). On each Settlement Date, the Servicer (or, following (x) its assumption of control of the Lock-Box Accounts or (y) its receipt of any amounts payable under any Pool Receivable pursuant to Section 1.10 and 4.4(a), the Administrator) shall, distribute such Collections in the following order of priority:
(i) first, during the continuance of any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) Event of Default, to the Administrator, for the Seller payment of costs and out-of-pocket expenses payable by the Borrower under Section 6.4(a) to the extent such costs arise from the replacement of the Servicer of such Purchaser’s refusalwith any successor Servicer(s), pursuant to Section 1.10including, without limitation, any upfront charges, ongoing fees, deposits, and transition costs;
(ii) second, 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 the Servicer for the benefit payment of the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such Purchaser and applied in accordance with clause (iii) belowamount has not been distributed to the Servicer);
(iii) if such day is a Termination Day third, to each Lender and other Credit Party (or any day following ratably, based on the provision of an Exiting Noticeamount then due and owing), set aside, segregate all accrued and hold in trust (unpaid Interest and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal Fees due to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for Lender and other Credit Party accrued during 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 immediately preceding Interest Period (including any additional amounts received by such Purchaser or indemnified amounts payable under Sections 1.10 and 3.1 in respect of this parenthetical such payments), plus, if applicable, the amount of any such Interest and thereafter Collections shall be set aside for such Purchaser ratably Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on such payments) payable for 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, prior Interest Period to the extent representing a return on Aggregate Investment (such amount has not been distributed to such Lender or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; andCredit Party;
(iv) release to the Seller fourth, as set forth in clause (subject to Section 1.4(fx), (y) for its own account any Collections in excess ofor (z) below, as applicable: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, to the extent that the Coverage Percentage exceeds 100% on such date: (I) first, to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the amount necessary to reduce the Purchased Interest Coverage Percentage to 100% and (II) second, to each LC Collateral Account, in reduction of the Aggregate Adjusted LC Participation Amount, in an amount equal to the amount necessary (after giving effect to clause (I) above) to reduce the Coverage Percentage to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second(y) if such day is a Termination Day: (I) first, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion Lender (ratably, based on the amount of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereofaggregate outstanding Capital of each Lender at such time) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate outstanding Capital of such Lender at such time and (II) second, to each LC Collateral Account (A) the amount necessary to reduce the Aggregate Adjusted LC Participation Amount to zero ($0) and (B) an amount equal to the LC Fee Expectation at such time; or (z) if such day is not a Termination Day, at the election of the Borrower and in accordance with Section 1.2(b), to the payment of all or any portion of the outstanding Capital of the Lenders at such time (ratably, based on the amount of aggregate outstanding Capital of each Purchaser Group’s Ratable Share Lender at such time);
(v) fifth, to the Credit Parties that are then Exiting Lenders (ratably, based on the amount due and owing at such time), for the payment of all accrued Servicing Fees. After other obligations then due and owing by the Aggregate InvestmentBorrower to such Credit Parties;
(vi) sixth, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased InterestCredit Parties, the Affected Persons and any the Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other amounts payable obligations then due and owing by the Seller Borrower to the Credit Parties, the Affected Persons and the Servicer to each Purchaser GroupIndemnified Parties;
(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 Borrower for its own account. Each Purchaser Agent hereby covenants ; provided, however, that in the event that an Event of Default has occurred and agrees is continuing, no Servicing Fees shall be paid pursuant to timely provide the Administrator with all information necessary for the Administrator to make the allocations clause (ii) above prior to the Purchaser Agents required application of payments pursuant to clauses (iii) through (vi) above.
(b) [Reserved]
(c) All payments or distributions to be made by the Administrator pursuant Servicer, the Borrower or any other Person to Sections 1.4(dthe Lenders (or their respective related Affected Persons and Indemnified Parties) and 1.4(f), including or the LC Bank hereunder shall be paid or distributed to the related Group Agent. The applicable Group Agent shall distribute such amounts to the applicable account of each Purchaser Agent for which amounts should be distributedLenders, the LC Bank, Affected Persons and the Indemnified Parties ratably.
(d) [Reserved].
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed rejected or foreclosed returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller Borrower or any Affiliate of the SellerBorrower, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller Borrower or any Affiliate of the SellerBorrower, 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, made in accordance with the Credit and Collection Policies), 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 adjustment and, if and shall immediately pay any and all 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 amounts in respect thereof to a Lock-Box Account for the benefit of the Lenders and their assigns and for application pursuant to Section 1.4;
(other than an Exception Accountii) if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Pool Receivable at the time a Loan was made with respect to such Pool Receivable, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers Lenders and their assigns and for application pursuant to this Section 1.6(a1.4 (Collections deemed to have been received pursuant to clause (i) within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gthis paragraph (e) or (m) of Exhibit III is not true with respect are hereinafter sometimes referred to any Pool Receivable, the Seller shall be deemed to have received on such 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“Deemed Collections”), 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 a manner consistent with the oldest application and allocation procedures employed by the Servicer at such Receivable, unless such Obligor designates in writing its payment for application to specific Receivablestime; and
(iv) if and to the extent the Administrator, any Purchaser Group Agent or any Purchaser Lender shall be required for any reason to pay over to an Obligor (or any trustee, receiverReceiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller Borrower and, accordingly, 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Financing Agreement (Cincinnati Bell Inc)
Settlement Procedures. 749336112 22708133
(a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at the request of if so requested by the Administrator (with the consent or at the direction of a Simple the Majority of the PurchasersLenders), segregate in a separate account approved designated by the Administrator, which shall be an account maintained and/or controlled by the Administrator ifunless the Administrator otherwise instructs in its sole discretion), at for application in accordance with the time priority of payments set forth below, all Collections on Pool Receivables that are actually received by the Servicer or the Borrower or received in any Lock-Box or Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the unpaid purchase price for Receivables purchased by the Borrower as of such requestdate in accordance with the terms of the applicable Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Company Note (each such release, there a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrator) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Accrual Period (plus, if applicable, the amount of Servicing Fees payable for any prior Accrual Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Accrual Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Accrual Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (A), (B) or (C) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists an Unmatured Termination Event or a Termination Event or if on such date, to the failure to so segregate reasonably could be expected to cause a Material Adverse EffectLenders (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the payment of a portion of the outstanding Aggregate Principal at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iiiB) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator Termination Date, to each Lender (with ratably, based on the consent or aggregate outstanding Principal of each Lender at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administratorsuch time) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Principal of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andsuch Lender at such time; or 749336112 22708133
(iiC) if such distribution occurs on a prior to the occurrence of the Termination Day or on a day when Date, at the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not election of the ServicerBorrower and in accordance with Section 2.02(d), to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit or any portion of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit outstanding Principal of the relevant Purchasers within Lenders at such Purchaser Agent’s Purchaser Grouptime (ratably, based on the aggregate outstanding Principal of each Lender at such time);
(iv) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator Credit Parties, the Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for distribution to each Purchaser Agent ratably according the payment of all other Borrower Obligations then due and owing by the Borrower to the aggregate of Credit Parties, the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group Affected Persons and the Borrower Indemnified Parties; and
(for v) fifth, the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (orbalance, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in fullany, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller Borrower for its own account. Each Purchaser Agent hereby covenants and agrees , including, without limitation, the payment of any amounts pursuant to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required a Release.
(b) All payments or distributions to be made by the Administrator pursuant Servicer, the Borrower and any other Person to Sections 1.4(d) the Lenders (or their respective related Affected Persons and 1.4(fthe Borrower Indemnified Parties), including shall be paid or distributed to the applicable account of each Purchaser Agent for party to which such amounts should be distributedare owed.
(ec) If and to the extent the Administrator, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to any Person (including any Obligor or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrator, such Credit Party, such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 1.44.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or Borrower, any Affiliate of the SellerOriginator, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller Borrower or any Affiliate of the SellerBorrower, an Originator or any Affiliate of an Originator, or the Servicer or any Affiliate of the Servicer 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 adjustment andand shall, if such reduction or adjustment within two (x2) causes the Purchased Interest to exceed 100%Business Days, (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 Credit Parties for application pursuant to Section 1.6(a4.01(a), an amount equal to (x) within one Business Day of if such reduction or adjustment;adjustment occurs prior to the Termination Date and no Event of Default has occurred and is continuing, the lesser of (A) the sum of all deemed Collections with respect to such reduction or adjustment and (B) an amount (if any) necessary to eliminate any Borrowing Base Deficit that exists at such time and after giving effect to such reduction or adjustment and (y) if such reduction or adjustment occurs on or after the Termination Date or at any time when an Event of Default has occurred and is continuing, the sum of all deemed Collections in respect thereof; 749336112 22708133
(ii) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III 7.01 is not true with respect to any Pool Receivable, the Seller Borrower shall be deemed to have received on such date, day a Collection of such Pool Receivable in fullfull and shall, and if such breach within two (x2) causes the Purchased Interest to exceed 100%Business Days, (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 Credit Parties 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)(ii4.01(a), the Administrator’s and each other Purchaser’s rights in an amount equal to (x) if such Receivable shall automatically be conveyed breach occurs prior to the SellerTermination Date and no Event of Default has occurred and is continuing, without representation or warranty, but free and clear the lesser of (A) the sum of all liensdeemed Collections with respect to such breach and (B) an amount (if any) necessary to eliminate any Borrowing Base Deficit that exists at such time and after giving effect to such breach and (y) if such breach occurs on or after the Termination Date or at any time when an Event of Default has occurred and is continuing, security interests, charges the sum of all deemed Collections in respect thereof (Collections deemed to have been received pursuant to Section 4.01(d)(i) and encumbrances created by or through the Administrator or any Purchaser4.01(d)(ii) 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent Credit Party, any Affected Person or any Purchaser Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller Borrower and, accordingly, 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Financing Agreement (Worthington Industries Inc)
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 shall, on each day on With respect to all periods for 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Agent has been extended funded Loans pursuant to Section 1.10 and any Purchaser (or its Purchaser Agent3.11(a) has provided notice (an “Exiting Notice”) to the Administratorabove, the Seller amount of each Lender's Pro Rata Share in the outstanding Loans and Letter of Credit Accommodations shall be computed weekly, and shall be adjusted upward or downward on the Servicer basis of the amount of the outstanding Loans as of the close of business on the Business Day immediately preceding the date of each settlement computation; PROVIDED, THAT, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. Agent shall deliver to each of Lenders after the end of each week, or such Purchaser’s refusallesser period or periods as Agent shall determine, pursuant a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to Section 1.10, as a "Settlement Period"). If the summary statement is sent by Agent and received by a Lender prior to extend its 12:00 noon (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”New York City time) then such Collections Lender shall not be reinvested 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 shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day summary statement is sent by Agent and received by a Termination Day Lender after 12:00 noon (or any day following the provision of an Exiting NoticeNew York City time), set aside, segregate and hold in trust such Lender shall make such settlement transfer by no later than 2:00 p.m. (and shall, at New York City time) on the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from next Business Day following the date of the provision receipt 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 Daysummary statement. If, 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) end of any Settlement Period, the amount of a Lender's Pro Rata Share of the definition outstanding Loans is more than such Lender's Pro Rata Share of “Termination Day” the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (or any day following but in no event later than the provision of an Exiting Notice) and, thereafter, the conditions time set forth in Section 2 of Exhibit II are satisfied or waived the preceding sentence) transfer to Agent by wire transfer in immediately available funds the Administrator and a Simple Majority amount of the Purchasers (or in increase. If the case amount of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Lender's Pro Rata Share of the Servicing Fee accrued and unpaid through outstanding Loans in any Settlement Period is less than the amount of such day and all reasonable and appropriate out-of-pocket costs and expenses Lender's Pro Rata Share of the Servicer outstanding Loans for servicingthe previous Settlement Period, collecting Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and administering effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Agent. Each of Agent and Lenders agrees to ▇▇▇▇ its books and records at the Pool Receivablesend of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letter of Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans which have been funded by such Lender.
(c) The Servicer shallTo the extent that Agent has made any such amounts available and the settlement described above shall not yet have occurred, in accordance 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 the priorities set forth in Section 1.4(d)immediately available funds representing its Pro Rata Share of each Loan, deposit on each Settlement Date into the account from time prior to time specified by the Administrator, Collections held Agent's disbursement of such Loan to or for the benefit of Borrower. In such event, all Loans under this Agreement shall be made by the Purchasers pursuant Lenders simultaneously and proportionately to Sections 1.4(b) and 1.4(f); provided, that if WESCO 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 an Affiliate thereof is the Servicer, such day is not decreased as a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion result of the Collections set aside pursuant default by any other Lender in the other Lender's obligation to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodmake a Loan requested hereunder.
(d) The Servicer If Agent is not funding a particular Loan pursuant to 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 Loan requested or otherwise made on such day and Agent may, in its discretion, but shall distribute not be obligated to, cause a corresponding amount to be made available to Borrower on such day. If Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to Agent by such Lender, Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the amounts described (and date such payment was due until the date such amount is paid to Agent at the times set forth) Interest Rate. During the period in Section 1.4(c)which such Lender has not paid such corresponding amount to Agent, 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 notwithstanding anything to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit contrary contained in this Agreement or any of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination DayFinancing Agreements, the amount necessary so advanced by Agent to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the secondBorrower shall, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zeropurposes hereof, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser be a Loan made by Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Upon any such failure by a Lender to pay Agent, Agent hereby covenants shall promptly thereafter notify Borrower of such failure and agrees the Borrower shall immediately pay such corresponding amount 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 distributedits 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, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Interest to exceed 100%, (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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received default by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereofLender hereunder.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Loan and Security Agreement (Industrial Fuels Minerals Co)
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 Liquidation Day, a Pool Non-Compliance Date and current computations of the Purchased each Receivable Interest.
(b) The Servicer So long as the Parent's Debt Ratings are equal to or higher than BB by S&P and equal to or higher than Ba3 by ▇▇▇▇▇'▇, the 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 Administrator (with the consent or at the direction Program Agent following an Event of a Simple Majority of the Purchasers)Termination, segregate in a separate account approved by the Administrator 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 Effectsegregate) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder Investors or the Banks that hold such Receivable Interest the percentage of such Collections. Such remainder shallCollections represented by such Receivable Interest, to the extent representing a return on the Aggregate Investmentof Capital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time recomputation 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 Receivable 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) below2.03;
(iii) if such day is a Termination Liquidation Day (for any one or any day following the provision of an Exiting Notice)more Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction Program Agent following an Event of a Simple Majority of the Purchasers)Termination, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser Group Investors and/or the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to Banks that hold such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely Receivable Interests and 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 Investor Agents (x) if such day is also a Termination DayLiquidation Day for less then all of the Receivable Interests, the percentage of such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received Collections represented by such Purchaser Receivable Interests and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in respect excess of this parenthetical the aggregate Capital of such Receivable Interests and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)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 (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) 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 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 Program Agent to the Administrator, the Seller and the Servicer)Investor Agents, such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions conditions; PROVIDED, FURTHER, if such day is a Liquidation Day for one or revocation 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 Exiting NoticeReceivable 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
(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) 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shallAt any time when the Parent's Debt Rating is downgraded to less than BB by S&P or less than Ba3 by ▇▇▇▇▇'▇, the Program Agent shall direct each Lock-Box Bank to remit all Collections deposited in accordance the Lock-Box Accounts to the Program Agent Account at least once each Business Day, and thereafter the Collection Agent shall not be permitted to withdraw any funds from the Program Agent Account on any day unless (i) the Collection Agent shall have provided the Agents with each Seller Report then due, (ii) the priorities set forth most recent Seller Report shall show that no Pool Non-Compliance Date exists or shall show that after taking into account the withdrawal of a portion (but not all) of the funds in the Program Agent Account, no Pool Non-Compliance Date will exist (in which case, only such portion of funds may be withdrawn) and (iii) no other Event of Termination shall exist. If the Collection Agent is permitted to withdraw funds from the Program Agent Account pursuant to the preceding sentence, such funds shall be applied as provided in Section 1.4(d2.04(b). If the Collection Agent is not permitted to withdraw all of the funds from the Program Agent Account pursuant to the first sentence of this Section 2.04(c), then on any subsequent Business Day on which funds are on deposit on in the Program Agent Account, the Collection Agent may, following delivery of a Seller Report to each Settlement Date into Agent, withdraw from the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO Program Agent Account all or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections funds in the Program Agent Account and apply such funds as provided in Section 2.04(b); PROVIDED, that such Seller Report shall state that, after taking account of the proposed withdrawal, a Pool Non-Compliance Date does not exist, such Seller Report shall set aside pursuant forth the calculation supporting such statement and no other Event of Termination shall exist. On any Business Day which is a Settlement Date or a Weekly Settlement Date, the Program Agent shall, and on any Business Day on which an Event of Termination exists, the Program Agent may, direct the Program Agent Account Bank to Section 1.4(b)(i) that represents remit all funds then in the Program Agent Account to the Investor Agent's Account of each Investor Agent (ratably according to the aggregate Capital of each Purchaser Receivable Interests held by the Investors and Banks in such Investor Agent's Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period).
(d) The Servicer Collection Agent shall deposit into the Investor Agent's Account of each Investor Agent, on the Settlement Date for each Receivable Interest, Collections held for such Investor Agent and/or the Investors or the Banks in its Group that relate to such Receivable Interest pursuant to Section 2.04(b). In addition, on the day of delivery of any Monthly Report or Weekly Report which sets forth a Pool Non-Compliance Date as of the close of business on the last Business Day of the preceding Fiscal Month or 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 of each Investor Agent (ratably according to the aggregate Capital of Receivable Interests held by the Investors and Banks in such Investor Agent's Group) Collections set aside pursuant to clause (iii) of Section 2.04(b); PROVIDED that the aggregate amount deposited pursuant to this sentence with respect to any Monthly Report or Weekly Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital, the sum of the Receivable Interests is equal to the Maximum Receivable Interest.
(e) Upon receipt of funds deposited into the Investor Agent's Account, the relevant Investor Agent shall distribute the amounts described (and at the times set forth) in Section 1.4(c), them as follows:
(i) if such distribution occurs on a day that is not a Termination Liquidation Day (and the Purchased Interest does not exceed 100%consist of funds remitted directly from the Program Agent Account pursuant to the last sentence of Section 2.04(c)), first to the Administrator for distribution to each Purchaser Collection 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 Collection Agent Fee payable by the Investors and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Banks in its Group and then to the Purchasers within Investors or the Banks in its Purchaser Group ratably according that hold the relevant Receivable Interest and to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) Investor Agent in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees so set aside, andYield and Fees.
(ii) if such distribution consists of (x) funds remitted directly from the Program Agent Account pursuant to the last sentence of Section 2.04(c) or (y) funds deposited pursuant to the second sentence of Section 2.04(d), and, in either case, no Event of Termination then exists, to the Investors or the Banks in its Group that hold the Receivable Interests in reduction of the Capital of such Receivable Interests.
(iii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Collection Agent in payment in full of all accrued Servicing FeesCollection Agent Fee payable by the Investors and Banks in its Group, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for Investors or the benefit of Banks in its Group that hold the relevant Purchasers within Receivable Interest and to such Purchaser Agent’s Purchaser Group) Investor Agent in payment in full of all accrued Yield and Fees, third to such accrued Discount with respect Investors and/or Banks in reduction to each Portion zero of Investment funded all Capital and fourth to such Investors, Banks or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Investor Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate DiscountYield, fees payable pursuant to each Purchaser Group 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 to the Servicer to each Purchaser GroupInvestors, the Administrator Banks, the Investor Agents or any other Indemnified Party or Affected Person hereunder, 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. 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.
(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, 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 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 adjustment and, if such reduction or adjustment Diluted Receivable which shall be payable by the Seller on the earlier of (x) causes the Purchased Interest to exceed 100%, first day thereafter on which a Seller Report is due and (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 an 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 adjustmentTermination;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (m) of Exhibit III is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by Applicable Law 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Program Agent or any Purchaser of the Investor Agents, the Investors or the 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 such Person but rather to have been retained by the Seller and, accordingly, the Program Agent or such Person Investor Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(fg) If at any time On the fifth Business Day after the end of each calendar month in respect of which Yield is computed by reference to the Investor Rate, each Investor Agent shall furnish the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such proposed reduction Fixed Period with respect to the Receivable Interests held by the Investors and the proposed date on which Banks in such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respInvestor Agent's Group.
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 (with the consent or at the direction of a Simple the Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 an effect of the type described in clauses (b) through (e) of the definition of Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, third, an amount equal to the Increased Costs accrued and thirdunpaid through such day and fourth, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s 's Ratable Share of the Servicing Fee accrued through such day and not previously set aside;.
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s 's Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; providedPROVIDED, howeverHOWEVEr, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple the Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 an effect of the type described in clauses (b) through (e) of the definition of 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%; providedPROVIDED, furtherFURTHER, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser (or its and is not also a Related Committed Purchaser), if such Purchaser Agent) has provided notice (an “Exiting Notice”a "DECLINING NOTICE") to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a "DECLINING CONDUIT PURCHASER") no longer wishes Collections with respect to any Portion of Investment funded or maintained by such Purchaser’s Purchaser to be reinvested pursuant to this CLAUSE (II), and (y) in the case of any Purchaser that has either (A) provided notice (an "EXITING NOTICE") to its Purchaser Agent of its refusal, pursuant to Section SECTION 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder or (B) for whom the Purchaser Group Facility Termination Date for its Purchaser Group has occurred (in either case, an “Exiting Purchaser”"EXITING PURCHASER"), then in either case (x) then 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 CLAUSE (iii) ), below;,
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting NoticeNotice or the occurrence of a Purchaser Group Facility Termination Date), set aside, segregate aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple the Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s 's ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s 's ratable share of such Collections, such Purchaser’s 's Investment shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s 's Investment has been paid in full; it being understood IT BEING UNDERSTOOD that if such day is also a Termination Day, such Declining Conduit Purchaser's or Exiting Purchaser’s '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)); providedPROVIDED, 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 NoticeNotice or the occurrence of a Purchaser Group Facility Termination Date) and, thereafter, the conditions set forth in Section SECTION 2 of Exhibit EXHIBIT II are satisfied or waived by the Administrator and a Simple the Majority of the Purchasers (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller Seller, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment's Investment (or, in the case of a revocation of a Declining Notice or an Exiting Notice, in accordance with the Investment of such Declining Conduit Purchaser or Exiting Purchaser), be reinvested in accordance with clause CLAUSE (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Declining Notice or Exiting Notice; , as the case may be, 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 first or second 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesday.
(c) The Servicer shall, in accordance with the priorities set forth in Section SECTION 1.4(d), below, deposit into each applicable Purchaser's account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit each Purchaser with respect to such Purchaser's Portion(s) of the Purchasers Investment pursuant to Sections 1.4(bCLAUSE (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to CLAUSES (b)(ii) and 1.4(f)(iii) of SECTION 1.4; provided, that if WESCO KU or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO KU (or such Affiliate) that such right is revoked, WESCO KU (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iCLAUSE (b)
(i) that represents the aggregate of each Purchaser Group’s 's Ratable Share of the Servicing Fee. Within three Business Days of On the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield PeriodPeriod then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section SECTION 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution FIRST to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) in payment in full of all accrued Discount and fees Fees (other than Servicing Fees) payable hereunder with respect to each Portion of Investment maintained by the Purchasers within such PurchasersPurchaser Agent's Purchaser Group; it being understood IT BEING UNDERSTOOD that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount the Discount, SECOND to the Administrator (for the benefit of the relevant Affected Party(s)) in payment of any Increased Costs claimed during such Yield Period and fees, and secondTHIRD, 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’s 's own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s '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 KU or an Affiliate thereof is not the Servicer, to the Servicer’s 's own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution SECOND to each Purchaser Agent ratably according to Investment the Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s 's Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution THIRD to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s 's Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) in payment in full of each Purchaser’s 's Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood IT BEING UNDERSTOOD that each Purchaser Agent shall distribute the amounts described in the second, third FIRST and fourth SECOND clauses of this Section SECTION 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orDiscount and Investment, in the case of the third clause of this Section 1.4(d)(ii)respectively, fees (not including the Servicing Fee), fifthFOURTH, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zerozero (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), and all accrued Servicing Fees payable to the Servicer (if other than WESCO KU or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts (including Increased Costs) owed thereto by the Seller or Servicer hereunderhereunder and, and sixthFIFTH, to the Servicer’s 's own account (if the Servicer is WESCO KU or an Affiliate thereof) in payment in full of the aggregate Aggregate of each Purchaser Group’s 's Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted downward as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment (except a setoff in the ordinary course in connection with a Security Deposit or Obligor Payment Plan or pursuant to the terms of an Energy Wholesale Contract) 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 anddownward adjustment; PROVIDED, HOWEVER that if such the Servicer is not the Originator or an Affiliate of Seller or the Originator, Seller shall not be deemed to have received collections under this SECTION (e)(i) for any reduction or downward adjustment (x) causes the Purchased Interest of a Pool Receivable resulting solely from such Servicer's failure 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 adjustmentcomply with applicable Legal Requirements;
(ii) if on any day any of the representations or warranties in Section SECTION 1(g) or (mn) of Exhibit EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 CLAUSE (i) or (ii), or as otherwise required by Applicable Law applicable Legal Requirements or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ ' prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days' prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice to shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) PROVIDED THAT the amount of any such reduction shall be not less than $500,000 1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $20,000,000 and shall be in the aggregate for all Purchaser Groups an integral multiple of $1,000,000 (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respIn
Appears in 1 contract
Sources: Receivables Purchase Agreement (Louisville Gas & Electric Co /Ky/)
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at the time of such request, there exists which shall be 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 account maintained 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved controlled by the Administrator) for Administrative Agent unless the benefit of each Purchaser Group the entire remainder of the Collections (or Administrative Agent otherwise instructs 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 fullsole discretion; it being understood and agreed, that, unless and until the Administrative Agent gives such instructions, the Servicer shall not be required to hold Collections in a separate deposit account containing only such Collections, and may commingle such Collections with its own funds, so long as the Servicer is able, on each Business Day and on an equitable and consistent basis, to identify which portion of amounts credited to such deposit account are Collections), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts are received by such Purchaser the Servicer or the Borrower or received in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated))any Lock-Box or Collection 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” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 of Exhibit II 6.03 are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, on 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 Administratordate, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) Servicer may release to the Seller Borrower from such Collections the amount (subject if any) necessary to Section 1.4(f)) for its own account any Collections in excess of: pay (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yi) the amounts that are required to be set aside pursuant to clause (i), purchase price for Receivables purchased by the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through Borrower on such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, date in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into terms of the account from time to time specified Purchase and Sale Agreement or (ii) amounts owing by the AdministratorBorrower to the Originators under any Intercompany Loan Agreement (each such release, Collections held for a “Release”).. On each 33 Settlement Date, the benefit Servicer (or, following its assumption of control of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of InvestmentCollection Accounts, the applicable Purchaser Agent will notify Administrative Agent) shall, distribute such Collections in the Servicer and the Administrator by e-mail following order of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the Servicer (if other than WESCO or an Affiliate thereof) have extent such amount has not been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, distributed to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) second, to each Lender and other Credit Party (ratably, based on the proposed date of commencement amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Interest Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Lender or Credit Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Sources: Receivables Financing Agreement (Compass Minerals 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 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 Administrator (with after the consent occurrence of an Unmatured Termination Event or at the direction of a Simple Majority of the Purchasers)Termination Event, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the sum of (w) the Aggregate Discount accrued through such day for each Portion portion of Investment and Capital not previously set aside, second, (x) an amount equal to the fees set forth in each Purchaser Group Fee Letter owing to the Purchasers and the Administrator accrued and unpaid through such day, and 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 aggregate of each Purchaser Group’s Ratable Share of Agents, the Servicing Fee accrued through such day Administrator, and not previously set asideany other Indemnified Party or Affected Person;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder the Collections not set aside pursuant to clause (b)(i) of this Section 1.4 shall, to the extent representing a return on the Aggregate Investmentof Capital, ratably, be automatically Reinvested according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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%; provided% and (y) cause the Aggregate Capital to not exceed the Purchase Limit, furtheras applicable, that if the Facility Termination Date has been extended pursuant which amount shall be deposited ratably to Section 1.10 and any Purchaser (or its each Purchaser Agent) has provided notice ’s account (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 its related Purchasers and to be applied in reduction of their respective Capital) on the next Settlement Date in accordance with clause (iii) belowSection 1.4(c);
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) ), for the benefit of each Purchaser Group Group, the entire remainder of the Collections not set aside pursuant to clause (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 b)(i) of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated))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” (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), then such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested Reinvested in accordance with clause (ii) above on the next day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeto 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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesday.
(c) The On the fifth (5th) Business Day of each calendar month, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each portion of Capital during the previous Settlement Period. On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of the Purchasers pursuant to Sections 1.4(bits related Purchasers) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4 (b)(ii) and 1.4(b)(iii); provided, however, that represents if the aggregate 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 Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, maintained by the applicable Purchaser Agent will notify 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 Administrator by e-mail of extent the amount of the Discount accrued with respect to such Portion of Investment during the related Yield PeriodPurchased Interest exceeds 100%.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), ) on each Settlement Date as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%: first, first to the Administrator for distribution 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 ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Aggregate Capital pursuant to clause (f) below, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersthe related reduction in Aggregate Capital; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount in accordance with each such Purchaser’s Capital; 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)fifth, to the Servicer’s Seller for its own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andaccount.
(ii) if such distribution occurs on a Termination Day or on a any day when on which the Purchased Interest exceeds 100%, : first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued , the Servicing Fees, secondFee, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for extent accrued and unpaid through the benefit last day of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all immediately preceding Settlement Period until such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been are paid in full, to the Administrator for distribution ratably extent not otherwise netted out from Collections by the Servicer; second, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group) ), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, such accrued fees owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital) and to the Administrator; fourth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of each Purchaser’s Capital (or if such day is not a Termination Day but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%) it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect thereto have been reduced to zero (or the Aggregate Capital has been reduced to the extent necessary to cause the Purchased Interest not to exceed 100%), and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts Aggregate Unpaids owed thereto by the Seller or Servicer hereunder, hereunder (other than contingent indemnification obligations); and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted canceled as a result of any defective(x) without duplication, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount rebate, dilution, discount, or other adjustment (including, without limitation, an extension or adjustment made pursuant to the applicable Credit and Collection Guidelines) made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate Originator, including in connection with the cancellation and reissuance of the Servicerany Pool Receivable, or (y) any setoff set-off or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer 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 reduction, adjustment, cancellation or adjustment anddispute (which, if such reduction or adjustment (x) causes in the Purchased Interest to exceed 100%case of a cancellation and reissuance of any Pool Receivable, (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 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 reduction or adjustment to day is not a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at Termination Day, hold any and all such time) amounts in trust for the benefit of each Purchaser Group and, on the Purchasers for application pursuant to following Settlement Date, apply such amounts in accordance with this Section 1.6(a1.4 or (y) if such day is a Termination Day, within one two (2) Business Day 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 (mn) of Exhibit III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall be deemed shall, subject to have received on such dateSection 1.4(e)(v), a Collection of such Pool Receivable in full, and (1) if such breach (x) causes the Purchased Interest to exceed 100%day is not a Termination Day, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at hold any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay the amount of all such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) amounts in trust for the benefit of each Purchaser Group and, on the Purchasers for application pursuant to Section 1.6(a) within one Business Day of following Settlement Date, apply such breach; provided that, upon payment in full by the Seller of any Pool Receivable amounts in accordance with this Section 1.4(d)(ii1.4 or (2) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts from its own funds in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 or the relevant Contractapplicable Law, all Collections received from an Obligor of any Pool Receivable shall be applied to the Pool Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and;
(iv) if and to the extent the Administrator, any Purchaser Agent Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Person Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Person 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 time, the Seller shall wish may elect to cause the a reduction of Aggregate Investment Capital in accordance with this clause (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investmentf), the . The Seller may do so as follows:
(i) the Seller shall give deliver to the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (the “Paydown Notice”) at least two Business Days’ prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment (such Capital, which notice to 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 benefit of each Purchaser ratably according to its InvestmentPurchaser, for payment to the Administrator (each Purchaser Agent for the account benefit of such Purchaser) Purchaser on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) a Purchaser Agent only when in fact finally so paid; ; provided, that:
that (Ax) 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 $500,000 in the aggregate for all Purchaser Groups 10,000,000 (unless the entire Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction Capital shall be in the amount required to reduce the Aggregate Investment have been reduced to zero); and
and (By) with respthe Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Vistra Energy Corp.)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer 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, 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 in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Groupthe Purchaser, out of the 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 Investment and not previously set aside, aside and second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of Servicing Fee, the Servicing Utilization Fee, the Commitment Fee and Breakage Costs accrued through such day and not previously set aside;; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of the percentage of such Collections. Such remainder shall, represented by the Participation, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, be ; such Collections shall 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 one hundred percent (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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 paragraph (iii) below;
(iii) if such day is a Termination Day (or any day following Day, maintain in the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date percentage of the provision of an Exiting Notice until Collections represented by the date such Purchaser’s Investment has been paid in fullParticipation; it being understood provided 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 (so long 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 are waived by the Administrator and a Simple Majority of Agent, the Purchasers (or amount so maintained 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 Collection Account shall be remitted to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably remain invested in accordance with each Purchaser’s Investment, be reinvested in accordance with clause the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 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 of event an Originator is not the Servicing Fee accrued and unpaid through such day and Servicer, all reasonable and appropriate out-of-pocket costs and expenses of the such Servicer for of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dPurchaser’s Account (or such other account designated by the Agent), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for on deposit in the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Collection Account pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share in respect of the Servicing accrued Utilization Fee, accrued Commitment Fee and accrued Breakage Costs (if any). Within three Business Days of The Servicer shall deposit into the Purchaser’s Account (or such other account designated by the Agent), on the last day of each Yield Period relating to a Portion of Investment:
(i) Collections held on deposit in the Collection Account pursuant to Section 1.4(b)(i) in respect of accrued Discount with respect to such Portion of Investment;
(ii) Collections held on deposit in the Collection Account pursuant to Section 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Collection Account pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment. On each Settlement Date, the Servicer shall deposit to its own account, from Collections held on deposit in the Collection Account pursuant to Section 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser’s Account pursuant to the first sentence of Section 1.4(c), the Agent shall cause such funds to be distributed to the Purchaser in payment of the accrued and unpaid Utilization Fee, Commitment Fee and Breakage Costs (if any). Upon receipt of funds deposited into the Purchaser’s Account pursuant to the second sentence of Section 1.4(c) with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect shall cause such funds to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 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 such Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Investment, and second to the Purchasers within its Purchaser Group ratably according to Discount Purchaser, the Agent and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) any other Indemnified Party or Affected Person in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set asideany other amounts owed thereto pursuant to Section 1.7, Section 1.8, Section 3.1, or Section 5.4; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Day, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchaser in payment in full of all accrued Servicing FeesDiscount with respect to such Portion of Investment, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupInvestment, third, and third to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if any other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate the accrued and unpaid Utilization Fee, the accrued and unpaid Commitment Fee, the accrued and unpaid Discount, fees payable pursuant to each Purchaser Group Fee Letter the accrued and unpaid Servicing Fees with respect to the Purchased InterestFee, and any other amounts payable by the Seller and to the Servicer to each Purchaser GroupPurchaser, 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. 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, damaged, rejected, returned, repossessed or foreclosed goods or services, or any revisiondiscount, cancellationrebate, allowancecredit, discount counterclaim, billing error or other adjustment made by the Seller or any Affiliate of the Seller, any Originator or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, any Originator 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(gparagraphs (e), (f) or (mk) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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, and 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 breach payment to a particular Receivable or Receivables within thirty (x30) causes the Purchased Interest to exceed 100%, (y) occurs days after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event such payment has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to been received in 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 thatServicer, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)then, 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 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the AdministratorAgent, any the Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment or any Portion of Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two five (or in the case of any reduction of a Portion of Investment which is not a reduction of the entire Investment, one) Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include including the amount of such proposed reduction and the proposed date on which such reduction will commence);,
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to 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 benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) Agent on the next Settlement Datelast day of the current Yield Period relating to the 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 date an amount equal to all other obligations of the Seller or Servicer to the Purchaser, the Agent and each other Indemnified Party or Affected Person hereunder), and the Aggregate Investment (together with or the applicable Portion of Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) Agent only when in fact finally so paid; ; provided, provided that:,
(A) A. the amount of any such reduction shall be not less than one million dollars ($500,000 1,000,000) and shall be an integral multiple of one hundred thousand dollars ($100,000), and the entire Investment of the Participation after giving effect to such reduction shall be not less than one million dollars ($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 aggregate for all Purchaser Groups (unless the Aggregate same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such reduction is less than $500,000, in which case such proposed reduction shall be applied, unless the Seller shall otherwise specify in the amount required notice given pursuant to reduce Section 1.4(f)(i), to the Aggregate Portion of Investment to zero); and
(B) with respthe shortest remaining Yield Period.
Appears in 1 contract
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time 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 requestdate, there exists an Unmatured Termination Event (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 a Termination Event (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 if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) 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 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 of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to 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) third, as set forth in clause (x), (y) or (z) below, as applicable:
(x) prior to the occurrence of the Termination Date and so long as the Weekly Reporting Period is not then in effect, to the extent that a Capital Coverage Deficit exists on such date, to the Administrative Agent for distribution to the Purchasers (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) for the 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%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iiiy) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shallDate, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Administrative Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesratably, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears based on each Settlement Date) in payment in full of the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 return in full of the Purchasers for application pursuant to Section 1.6(a) within one Business Day aggregate outstanding Capital of such reduction or adjustment;Purchaser at such time; or
(iiz) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III is not true with respect prior to any Pool Receivable, the Seller shall be deemed to have received on such 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 Date, at any time when the Purchased Interest exceeds 100% election of the Seller and in accordance with Section 2.02(d), to the Administrative Agent for distribution to each Purchaser for the return of all or any Termination Event has occurred and is continuingportion of the outstanding Capital of the Purchasers at such time (ratably, based on the Seller shall pay the amount aggregate outstanding Capital of such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator each Purchaser 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: 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 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), 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 Day (or any a day following on which the provision Commitment of an Exiting NoticePurchaser 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date day on which the Commitment of the provision of an such Exiting Notice Purchaser terminates, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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 on which the provision Commitment of an such Exiting NoticePurchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple the Majority of the Purchasers 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 by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), deposit on each Settlement Date into the account from time to time specified by the Administrator(for any Portion of Capital), Collections held for the benefit of the Purchasers each Purchaser pursuant to Sections 1.4(b1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if WESCO Swift or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Swift (or such Affiliate) that such right is revoked, WESCO Swift (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentCalculation Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail email communications or other electronic delivery of the amount of the Discount accrued with respect to such its Portion of Investment Capital during the related Yield Periodsuch Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to (based on the Discount and Fees accrued during such Yield Period 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 Investment Capital maintained by the Purchasers within such PurchasersPurchaser 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 feesFees, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, first if WESCO Swift or an Affiliate thereof is not the ServicerServicer or if Swift or an Affiliate thereof is the Servicer and a Termination Event shall have occurred and be continuing, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according to Investment (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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to (based on the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group 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 Investment Capital, (or, 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, second and third and fourth clauses of this Section 1.4(d)(iiclause (ii) to the Purchasers within its Purchaser Group ratably according (based on Discount and Fees and Capital, respectively), fourth, to Investment or, in the case LC Collateral Account for the benefit of the third clause LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of this Section 1.4(d)(ii), fees (not including cash collateral held in such LC Collateral Account equals 100% of the Servicing Fee)LC Participation Amount, fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Swift or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, hereunder and sixth, to the Servicer’s own account (if the Servicer is WESCO Swift or an Affiliate thereofthereof and a Termination Event is not continuing) in payment in full of the aggregate of each Purchaser Groupthe Purchaser’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital (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 each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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. 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, 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 andor, if such reduction or adjustment (x) causes in the Purchased Interest case of a Receivable which has been canceled and contemporaneously reissued pursuant 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 Credit and is continuingCollection Policy, the Seller shall negative difference (if any) between such canceled Receivable and such reissued Receivable, and shall, subject to Section 1.4(e)(v), immediately pay an amount equal to any and all such reduction or adjustment amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4(b);
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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 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 respect thereof 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 and their assigns and for application pursuant to Section 1.6(a1.4(b) within one Business Day of such breach(Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”); 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 (iSections 1.4(e)(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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to specified an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence)applicable Receivable;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, (y) an amount equal to the fees set forth in 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 aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the -9- Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.101.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be reinvested Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fleetcor Technologies Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicers, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer Servicers (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 Parent Servicer shall, shall allocate Collections on each day on which Collections deposit in the Deposit Accounts in the following order of Pool Receivables are received (or deemed received) by the Seller or the Servicerpriority:
(i) set aside and with respect to each Receivable Interest, the Parent Servicer shall hold in trust and segregate (and shall, at by retention in the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Effectrelevant Deposit Account) for the benefit of each Purchaser GroupInvestors that hold such Receivable Interest, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Yield, Servicer Fee and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing BCI Subservicer Fee accrued through the date of allocation for such day Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if no Liquidation Day for such day Receivable Interest has occurred and is not a Termination Daythen continuing, remit the Parent Servicer shall apply the percentage of such Collections represented by such Receivable Interest (w) to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder Investors that hold such Receivable Interest by recomputation of such Collections. Such remainder 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 Receivable Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 paragraphSection 2.03, shall equal (x) after accounting for such reinvestment, as may be required to prevent the amount necessary aggregate Receivable Interest from exceeding the Maximum Purchaser Interest, to reduce the Purchased Interest to 100%; providedoutstanding Capital of such Receivable Interest, further(y) in any combination of the allocations set forth in clauses (w) and (x), that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser or (or its Purchaser Agent) has provided notice (an “Exiting Notice”z) to further reduce the Administrator, the Seller and the Servicer outstanding Capital of such Purchaser’s refusalReceivable Interest (after giving effect to clauses (w), pursuant to Section 1.10, to extend its (or its Committed Purchaser’sx) Commitment hereunder and (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) belowy));
(iii) if a Liquidation Day for any one or more Receivable Interests has occurred and is continuing, apply to the outstanding Capital of each such Receivable Interest and to any other amounts payable by the Seller hereunder (x) if such day is a Termination Liquidation Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request for less than all of the Administrator (with Receivable Interests, the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share percentage of such Collections based on its Investment; providedrepresented by such Receivable Interests, 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 and (y) 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 Liquidation Day 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 all of the type described in clause (a) Receivable Interests, all of the definition remaining Collections (but not in excess of “Termination Day” (or the Capital of such Receivable Interests and 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 other amounts payable 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 Servicerhereunder), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) during such times as amounts are permitted to be reinvested in accordance with the foregoing subsection (ii) and Section 2.04(c), release to the Seller (subject to Section 1.4(f)) for its own account any Collections remaining after application of subsection (i) and (ii) above and the distribution of such amounts pursuant to Section 2.04(c). The Parent Servicer shall be responsible for the application of all Collections received in excess of: (x) amounts required to be reinvested any Deposit Account 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 foregoing subsections (i), the proviso to clause ) through (iiiv) and clause (iii) plus (z) the Seller’s Share on a Dollar Equivalent basis but may accomplish such application itself or jointly with one or more of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesother Servicers.
(c) The Parent Servicer shallshall deposit into the Operating Agent’s Account, in accordance with on the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administratorfor each Receivable Interest, Collections held for the benefit of the Purchasers pursuant Investors that relate to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Receivable Interest pursuant to Section 1.4(b)(i2.04(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of in the amount of accrued Yield, Servicer Fee and BCI Subservicer Fee through the Discount accrued with respect most recent completed Fixed Period ending on or prior to such Portion Settlement Date. The Parent Servicer shall make withdrawals from the Deposit Accounts pursuant to the allocations set forth in Sections 2.04(b)(ii), (iii) or (iv) on each Settlement Date and otherwise at its discretion but no less frequently then weekly and shall deposit into the Operating Agent’s Account on the date of Investment during such withdrawal all amounts so withdrawn and not either applied to reinvestment in the related Yield PeriodReceivables or released to the Seller to the extent permitted by Section 2.04(b)(iv). No withdrawal from the Deposit Accounts for reinvestment in Receivables and no release pursuant to Section 2.04(b)(iv) may occur if after giving effect to such reinvestment or release the sum of the Receivable Interests, each expressed as a percentage, would be greater than the Maximum Purchaser Interest or an Event of Termination would be continuing. The Parent Servicer shall deposit any amounts paid pursuant to Section 2.0l(d) into the Operating Agent’s Account.
(d) The Servicer Upon receipt of funds deposited into the Operating Agent’s Account, the Operating Agent shall distribute the amounts described (and at the times set forth) in Section 1.4(c), them as follows:
(i) if such the date of distribution occurs on is a day that is not a Termination Day and the Purchased Interest does not exceed 100%Settlement Date, first first, to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) Investors in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect Yield, second to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account BCI in payment in full of all accrued Servicing FeesBCI Subservicer Fee, second, third 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) Parent Servicer in payment in full of all accrued Servicer Fee, fourth to such accrued Discount with respect Investors in reduction to each Portion zero of Investment funded all Capital, and fifth to such Investors or maintained the Operating Agent in payment of any other amounts owed by the Purchasers within such Purchaser Agent’s Purchaser GroupSeller hereunder; and
(ii) if the date of distribution is not a Settlement Date, thirdfirst, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) Investors in payment in full of such portion, if any, of accrued Yield as the Operating Agent in its discretion shall deem, second to such Investors in reduction to zero of all Capital, and third to such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to Investors or the Administrator for distribution to each Purchaser Operating Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts (including accrued and unpaid Yield) owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Yield and BCI Subservicer Fee Letter and Servicing Fees with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and to the Servicer to each Purchaser Group, Investors or the Administrator or any other Indemnified Party or Affected Person Operating Agent hereunder, have been paid in fullfull and any contingent obligations of the Operating Agent under any Deposit Account 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. 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 1.42.04:
(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, 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 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 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 adjustmentDiluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.0l(h) or (m) of Exhibit III is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 subsection (i) or (ii) of this Section 2.04(e), or as otherwise required by Applicable Law 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Operating Agent or any Purchaser the Investors 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 such Person but rather to have been retained by the Seller and, accordingly, such Person the Operating Agent or the Investors, 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; provided, that, so long as an Event of Termination has not occurred and is not continuing, the Seller shall have no obligation to make any payment in respect of deemed Collections so long as the sum of the Receivable Interests, each expressed as a percentage, shall continue to be less than or equal to the Maximum Purchaser Interest.
(f) If at any time All amounts payable by the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the any Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment under this Agreement to the Administrator (Operating Agent for its own account or for the account of such Purchaserthe Investors shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Investors under this Agreement shall be payable in Dollars.
(g) on While this Agreement is in effect, the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchasersettlement procedures set forth in Section 2.04(c) shall be deemed reduced in prevail over the amount to be paid to first sentence of Section 2.03 of the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respOriginator Purchase Agreement.
Appears in 1 contract
Sources: Receivables Purchase Agreement (BRP Japan Co. Ltd.)
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of for such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupPurchaser, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to such Purchaser's Yield and Pro Rata Share of the Aggregate Discount Collection Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued through such day for each Portion of Investment 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 each Purchaser Group Fee Letter accrued and unpaid through contrary, such day, and third, amounts may be commingled with the Collection Agent's other funds prior to their payment to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set asidePurchasers;
(ii) subject to Section 1.4(f), if such day is not neither a Termination Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, remit to the Seller, ratably, reinvest on behalf of each such Purchaser Group, the remainder of such percentage of Collections. Such remainder shall, to the extent representing a return on the Aggregate Investmentof Capital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time recomputation 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 Receivable 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) below2.03;
(iii) if such day is a Termination Liquidation Day (or any day following the provision of an Exiting Notice)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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each such Purchaser Group the entire remainder of the Collections (or in the case such percentage of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCollections; 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 Provisional Liquidation 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 that is subsequently determined not to be 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 Liquidation Day thereupon 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 InvestmentCapital, 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 or waiver percentage of conditions or revocation Collections or, if the remainder of such Exiting NoticeCollections 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 if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers; and
(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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shallCollection Agent shall deposit into an account designated by each Purchaser, on each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with the priorities set forth in Section 1.4(d2.04(b), deposit on each Settlement Date into unless deposited earlier as provided in the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f)next succeeding sentence; provided, that however, if WESCO or an Affiliate thereof is Collections have been commingled with the ServicerCollection Agent's other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, such day is not a Termination Day any deposits made pursuant to the preceding clause shall be made by the Collection Agent from and to the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion extent of the Collections set aside pursuant with respect to a Receivable Interest owned by such Purchaser. If a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 1.4(b)(i2.04(b) that represents shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of each Purchaser Group’s Ratable Share of any other amounts then owed by the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect Seller to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute Purchaser hereunder. If the amounts described so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (and at the times set forth) whether or not such funds are sufficient to pay in Section 1.4(c), as follows:
(i) if 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 Administrator for distribution Collection Agent (if other than Georgia-Pacific or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second 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 unpaid Yield, third to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts in reduction to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect 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’s own account (payable in arrears on each Settlement Date) Purchaser in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunderto such Purchaser under this Agreement, and sixth, fifth to the Servicer’s own account Administrative Agent in payment of amounts owed by the Seller to the Administrative Agent under this Agreement and sixth to the Collection Agent (if the Servicer is WESCO Georgia-Pacific or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Feesits designee). After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter Capital and Servicing Fees Yield with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and to the Servicer to each Purchaser Group, 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. 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.
(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, cash discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Serviceran Originator, or any right of setoff or dispute between is exercised by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer 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 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 either (w) any of the representations or warranties contained in Section 1(gSections 4.01(h) or (m4.01(n) of Exhibit III 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 date, day 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 subsection (i) or (ii) of this Section 2.04(d), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it on its behalf hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Servicer, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit:
(i) with respect to each Receivable Interest, set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Effectbut not physically segregate) for the benefit of each Purchaser GroupBanks that hold such Receivable Interest, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount Yield, Fees and Servicer Fee accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to Banks on a pro rata basis 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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) below2.04(b)(i));
(iii) if such day is a Termination Liquidation Day for (x) any one or any day following the provision of an Exiting Notice)more (but not all) Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser Group Banks, the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share percentage of such Collections based represented by such Receivable Interests, or (y) all of the Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) all of the remaining Collections received by the Servicer on its Investment; provided, that solely for such date (but not in excess of the purpose of determining such Purchaser’s ratable share Capital of such Collections, such Purchaser’s Investment shall be deemed to remain constant from Receivable Interests and any other amounts payable by 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)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” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II 3.02 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)Agent, such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period[Intentionally Omitted].
(d) The Servicer shall distribute deposit into the Agent’s Account, (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 described (and at the times set forthother than Capital) in that relate to such Receivable Interest pursuant to Section 1.4(c2.04(b), (ii) on each Settlement Date (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 Banks pursuant to clause (iii) of Section 2.04(b); provided, however, that the aggregate amount deposited in the Agent’s Account pursuant to this clause (ii) with respect to any Seller Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the 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 are held for the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the preceding clause (ii) of this Section 2.04(d), all such remaining Collections.
(e) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Administrator for distribution to each Purchaser Agent ratably according Banks and to the Discount Agent in ratable payment in full of all accrued during such Yield Period (for and Fees and then to the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) Servicer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such PurchasersServicer Fee; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Banks and to the Agent in ratable payment in full of all accrued Yield and Fees, second to the Banks ratably in reduction to zero of all Capital, third to the Banks or the Agent in payment of any other amounts owed by the Seller hereunder or under any other Transaction Document, and fourth to the Servicer in payment in full of all accrued Servicing Fees, second, to Servicer Fee. After 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 Capital, Yield, Fees and the Servicer Fee with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased InterestReceivable 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 each Purchaser Groupany indemnity provided by the Agent 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. 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.
(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, 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 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 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 adjustmentDiluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (m) of Exhibit III is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by Applicable Law 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 in writing its payment for application to specific Receivables; and;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser the 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 such Person but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(fg) If at any time On the Facility Termination Date, the Seller shall wish pay to cause the reduction of Aggregate Investment (but not to commence Agent for its account and the liquidation, or reduction to zero, account of the entire Aggregate Investment), Banks and the Servicer the Termination Amount.
(h) All amounts payable by the Seller may do so as follows:or the Servicer under this Agreement to the Agent for its own account or for the account of the Banks shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Banks under this Agreement shall be payable in Dollars.
(i) the Seller shall give the Administrator, each Purchaser Agent All payments in respect of Yield and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment Capital (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaserx) shall be deemed reduced in the amount apportioned among all Receivable Interests to be paid to the Administrator which such payments relate and (for the account of such Purchasery) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 made to each Bank on a pro rata basis in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of accordance with such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respBank’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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of all such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Co-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 shallis continuing, at the request 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 Administrator (with the consent or at the direction of foregoing, a Simple Majority of the Purchasers“Daily Remittance Event”), segregate in the Servicer shall be required to remit all Collections received by NBCUniversal and the other Originators on a separate account approved daily basis to a new, dedicated bank account, established by the Administrator 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 Program Agent for the benefit of the Co-Acquirers prior to or promptly following a Daily Remittance Event (such Purchaser 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 applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day shall be given by the Program Agent promptly following the provision later of an Exiting Notice), set aside, segregate (A) the establishment of such account and hold in trust (and shall, at B) the request Program Agent’s knowledge of the Administrator (with the consent or at the direction occurrence of a Simple Majority continuing Daily Remittance Event; provided that, if (x) proceedings giving rise to any such Incipient Primary Insolvency Event are successfully stayed and discharged prior to the maturation of a Primary Insolvency Event, or (y) subsequent to the occurrence of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type circumstances described in clause (aii) above, two or more of Fitch, ▇▇▇▇▇’▇ and S&P rate NBCUniversal’s long-term unsecured non-credit-enhanced debt investment grade or higher (i.e., Baa3 or BBB- or higher), then the definition of “Termination Day” obligation to remit collections on a daily basis arising from such Daily Remittance Event shall cease.
(c) On each Settlement Date, the Servicer (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 shallProgram Agent, to the extent representing a return on Aggregate Investment that Collections have been remitted to the Program Agent’s Account pursuant to Section 2.04(b)) shall remit Collections held by the Servicer (or the Investment of Program Agent, as applicable) with respect to the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; andmost recently ended Settlement Period as follows:
(ivi) release first, to the Seller (subject Program Agent and each Investor Agent in payment of any amounts owed by the Transferor pursuant to Section 1.4(f)11.04(a) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance connection with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses incurred in the enforcement of this Agreement and the Servicer for servicing, collecting and administering the Pool Receivables.other Transaction Documents;
(cii) The Servicer shallsecond, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, the Servicer Fee for such day is not a Termination Day Settlement Period;
(iii) third, to each Investor Agent, for itself and the Administrator has not notified WESCO (or such Affiliate) that such right is revokedCo-Acquirers in its Group, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount Yield and fees Fees (other and any related accrued Liquidation Fee), as reported to the Servicer by such Investor Agent no later than Servicing Feesthe third Business Day preceding such Settlement Date;
(iv) with respect fourth, to each Portion Investor Agent, pro rata (based on the aggregate outstanding Investment of the Co-Acquirers in its Group), for the Co-Acquirers in its Group, (i) during a Partial Amortization Period, the excess of the Total Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to over the Purchasers within its Purchaser Group ratably according to Discount and feesTotal Investment Limit, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when following the Purchased Interest exceeds 100%occurrence of the Program Amortization Event, firstall remaining Collections, if WESCO or an Affiliate thereof is not the Servicer, for application to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Total 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 until Total Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have has been reduced to zero, and all accrued Servicing Fees payable to the Servicer ;
(if other than WESCO or an Affiliate thereofv) have been paid in fullfifth, to the Administrator for distribution ratably to each Purchaser Program Agent (for and the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected PersonInvestor Agents, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and Transferor hereunder which have not been paid pursuant to clauses (i) through (iv) above; and
(vi) sixth, to the Servicer’s own Transferor, on account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable Deferred Consideration.
(d) Funds that are to be remitted to an Investor Agent pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect Section 2.04(c) shall be remitted to the Purchased InterestInvestor Agent’s Account of such Investor Agent. Upon receipt of funds deposited into an Investor Agent’s Account, and any other amounts payable by the Seller applicable Investor Agent shall distribute such funds to itself and the Servicer to each Purchaser GroupCo-Acquirers in its Group in the same 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. 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(iv) and 1.4(f(v) of Section 2.04(c), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(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, 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 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 adjustment andand the Transferor shall compensate the Program Agent, if on behalf of the Co-Acquirers, for such reduction or adjustment (x) causes in 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 balance of such reduction or adjustmentEligible 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 (m) date of Exhibit III is transfer and assignment to the Program Agent, on behalf of the Co-Acquirers, and such representation was not true with and correct in any material respect to any Pool Receivableas of the date made, upon the Seller shall be deemed to have received on such date, a Collection earlier of such Pool Receivable in full, and if such breach (x) causes Knowledge thereof by a Responsible Officer of the Purchased Interest to exceed 100%, Transferor and (y) occurs after receipt by Transferor of notice thereof given by the occurrence Program Agent, on behalf of the Facility Termination 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 or 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 (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination or, if a Daily Remittance Event has occurred and is continuingoccurred, directly to the Seller shall pay Program Agent’s Account), immediately available funds in the amount of the Receivable Balance of such deemed Collection Receivable. Transferor shall be entitled to any payments by Obligors in respect of a LockReceivable reassigned pursuant to this Section 2.04(e)(ii) from and after the date the Program Agent, on behalf of the Co-Box Account (other than an Exception Account) (or as otherwise directed by Acquirers, has received the Administrator at such time) 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 Purchasers Co-Acquirers, as provided in this Section 2.04(e)(ii), the Program Agent, on behalf of the Co-Acquirers, shall automatically and without further action be deemed to 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 application 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 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 Receivable pursuant to this Section 1.6(a2.04(e)(ii). The obligation of Transferor to make the payments, if any, required to be made pursuant to this Section 2.04(e)(ii) within one Business Day shall be the sole remedy respecting any event giving rise to such obligation available to Program Agent, on behalf of such breachthe Co-Acquirers, or any assignee of its rights under this Agreement; provided that, upon payment in full by if the Seller of any Pool Receivable in accordance with Transferor fails to perform its obligations under this Section 1.4(d)(ii2.04(e)(ii), the Administrator’s Agents may exercise any and each all rights and remedies which they may have under this Agreement and all other Purchaser’s rights in such Receivable and remedies provided hereunder or under applicable law, which rights and remedies 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 Purchasercumulative;
(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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Program Agent or any Purchaser of the Investor Agents, Conduits or the 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 such Person but rather and never to have been retained paid by the Seller Obligor and, accordingly, the Transferor shall be required to remit such Person shall have a claim against amount to the Seller for Program Agent or such amountInvestor Agent, Conduit or the Bank, as the case may be, if and to the extent the Transferor receives any distribution from or on behalf of such Obligor 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
Within five Business Days after (i) the Seller shall give end of each Fixed Period in respect of which Yield is computed by reference to the AdministratorConduit Rate, each Purchaser Investor Agent shall furnish the Transferor, and (ii) the Servicer at least two Business Days’ prior written notice thereof for any reduction end of Aggregate Investment (such notice each Fixed Period in respect of which Yield is computed by reference to include the Alternate Base Rate, the applicable Investor Agent shall furnish Transferor, 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 commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not Fixed Period with respect to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced the Co-Acquirers in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respInvestor Agent’s Group.
Appears in 1 contract
Sources: Receivables Acquisition Agreement (NBCUniversal Media, LLC)
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Master Servicer or the Seller or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such requestdate, there exists an Unmatured Termination Event (A) the Master Servicer may release to the Seller from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the Sale Agreement and (B) the Master Servicer may release to the Seller all or a 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 received on Sold Receivables in exchange for the other Collections set aside pursuant to this paragraph, shall equal the Seller designating an equivalent amount necessary to reduce the Purchased Interest to 100%; provided, further, that if the Facility Termination Date has been extended (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 1.10 2.01(e), which new Sold Receivables will be automatically and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) immediately sold by the Seller to the Administrator, Administrative Agent (for the Seller and ratable benefit of the Servicer of such Purchaser’s refusal, Purchasers) pursuant to Section 1.102.01(b) upon such release (each such release of Collections described in clauses (A) and (B) above, to extend a “Release”). On each Settlement Date, the Master Servicer (or, following 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 assumption of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request control of the Administrator Collection Accounts (with to the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved extent that funds have not previously been released by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Administrative Agent to the Administrator, the Seller and the Master Servicer), such previously set-aside amounts the Administrative Agent) 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 distribute such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share following order of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Master Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administratorimmediately preceding Yield Period (plus, each Indemnified Party and each Affected Personif applicable, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 Servicing Fees payable for 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 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 prior Yield Period to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed has not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and distributed to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commenceMaster Servicer);
(ii) second, to each Purchaser and other Purchaser Party (ratably, based on the proposed date of commencement 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 reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Yield and Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Yield Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Purchaser or Purchaser Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Sources: Receivables Purchase Agreement (Ortho Clinical Diagnostics Holdings PLC)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:, including pursuant to Section 1.6(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate InvestmentCapital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.12, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with 745381243 05109795751949792 05109795 clause (iii) below;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 Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the Purchasers the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections based on its InvestmentCollections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on of Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment(determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d1.6(d), deposit into the Administration Account (or such other account designated by the 745381243 05109795751949792 05109795 Administrator), on each Settlement Date into (or, solely with respect to Collections held for the account from time Purchasers pursuant to time specified Section 1.6(f)(iii), such other date approved by the AdministratorAdministrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit of the Purchasers pursuant to Sections 1.4(bSection 1.6(b)(i), (ii) and 1.4(for (iii) or 1.6(f); provided, that if WESCO Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Peabody (or such Affiliate) that such the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, WESCO Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i1.6(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share Servicing Fee in payment in full of the accrued Servicing FeeFees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer and the Administrator by e-electronic mail of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall distribute the amounts described (and at the times set forth) in Section 1.4(c), cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c)) above, to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Day, 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, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Servicing Discount and Fees, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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); it being understood that each Purchaser Agent shall distribute , third, to the amounts described 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 second, third and fourth clauses of this Section 1.4(d)(iiLC Collateral Accounts (other than amounts representing LC Fee Expectation) to equal the Purchasers within its Purchaser Group ratably according to Investment aggregate outstanding amount of the Aggregate LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% or the sum of the Aggregate Capital plus the Aggregate LC Participation Amount to the Purchase Limit, as applicable) 745381243 05109795751949792 05109795 (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the Aggregate LC Participation Amount) and (y) if such day is a Termination Day or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the case of the third clause of this Section 1.4(d)(iiLC Collateral Accounts), fees (not including fourth, to the Servicer in payment in full of all accrued Servicing Fee)Fees, fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) amounts owing under clauses first through fourth above have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Agents (for the benefit of such Purchaser Agent and the Purchasers within such in their respective Purchaser Group) Groups), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to after the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full occurrence of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide account in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedsuch 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 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 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 Interest Assets Coverage Percentage to exceed 100%, % or (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 continuingDate, 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 and their assigns and for application pursuant to Section 1.6(a) 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in fullfull and, and if such breach (x) causes the Purchased Interest 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 or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuingDate, the Seller shall pay the amount of any and all such deemed Collection amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) 1.6 within one Business Day of such breach; provided thatand, upon payment receipt of cash payments in full by 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 in accordance with this Section 1.4(d)(iiand Related Security, shall be extinguished); provided, the Administrator’s and each other Purchaser’s rights in that any such Receivable reconveyance or release shall automatically be conveyed to the Seller, without representation or warranty, but free and clear of all liens, security 745381243 05109795751949792 05109795 interests, charges charges, and encumbrances created by or through the Administrator Administrator, any Purchaser Agent or any Purchaser;
(iii) except as provided in clause (i) or (ii)) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor (or Eligible Supporting Letter of Credit Provider or Credit Insurer, as applicable) of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Person Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Person Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment (Capital and such notice to 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 benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respsha
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate Aggregateaggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser GroupIssuer, 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 Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Issuer (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date Issuer's Share 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))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” (or any day following the provision of an Exiting Notice) " and, thereafter, the conditions set forth in Section SECTION 2 of Exhibit EXHIBIT II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Administrator), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit of the Purchasers Issuer pursuant to Sections 1.4(bCLAUSE (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to CLAUSES (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO Royal or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Royal (or such Affiliate) that such right is revoked, WESCO Royal (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iCLAUSE (b)
(i) that represents the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described Administration Account pursuant to CLAUSE (and at the times set forth) in Section 1.4(cc), 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 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) Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Issuer in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupCapital, third, second to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) Issuer in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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, third and fourth clauses of this Section 1.4(d)(ii) third, to the Purchasers within its Purchaser Group ratably according to Investment orServicer in payment in full of all accrued Servicing Fees, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifthand fourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital 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 Issuer, the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or 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 Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Groupthe 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. 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 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 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 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 reduc tion or adjustment;
(ii) if on any day any of the representations or warranties in Section SECTION 1(g) or (mn) of Exhibit 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 date, day 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 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, any Purchaser Agent Administrator or any Purchaser 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 such Person the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, such Person 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 Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent Administrator and the Servicer written notice in the form of Annex C (A) at least two Business Days’ ' prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment Capital less than or equal to $10,000,000 and (B) at least ten Business Days' prior to the date of such reduction for any reduction of Capital greater than $10,000,000 (in each case such notice to 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 benefit of each Purchaser ratably according to its InvestmentIssuer, for payment to the Administrator on (for the account of such Purchaser1) on the next Settlement DateDate immediately following the current Settlement Period or (2) such other date approved by the Administrator with at least five Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital 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; ; providedPROVIDED, that:
that (Aa) the amount of any such reduction shall be not less than $500,000 in 1,000,000 and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless entire Capital of the Aggregate Investment at the time of such reduction is less than $500,000, in which case 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 amount required to reduce the Aggregate Investment to zero); and
(B) with respsame 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 of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first, first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Investment and not previously set aside, aside and second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the 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 aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratablySellers, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investmentof 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 benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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 then all such Purchaser’s refusal, pursuant to Section 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such remaining Collections shall not be reinvested and shall instead be held in trust so set aside for the benefit of the Purchaser), rather than remitting all of such Purchaser and applied in accordance with clause (iii) belowremaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each the Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer Servicers for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on On each Settlement Date Date, each applicable Servicer shall (i) deposit into the Purchaser’s Account (or such other account from time to time specified designated by the Administrator, Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchasers Purchaser Parties pursuant to Sections 1.4(bSection 1.6(b) and 1.4(f)Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO no amounts shall be payable to Garland under clause (or such Affiliateii) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodabove.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described (and at the times set forth) in Purchaser’s Account pursuant to Section 1.4(c1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Accrual Period, second to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of all unpaid Utilization Fees, Commitment Fees and Breakage Costs accrued during the aggregate most recently ended Discount Accrual Period, third to the Purchaser in payment of each outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Group’s Ratable Share Party in payment in full of accrued Servicing Fees so set asideany 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%, first, if WESCO or an Affiliate thereof is not the Servicer, following order of priority: first to the Servicer’s own account Purchaser in payment in full of all accrued Servicing Feesand unpaid Discount, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Groupand unpaid Utilization Fees, thirdCommitment Fees and Breakage Costs, third to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersoutstanding Capital, fourth, 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 Agent and any other Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the any Seller or any Servicer hereunderhereunder (including, and sixthwithout limitation, pursuant to the Servicer’s own account (if the Servicer is WESCO Section 1.9, Section 1.10, Section 3.1, or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing FeesSection 5.4). After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to occurrence of the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller Sellers for its their own account. Each Purchaser Agent hereby covenants and agrees to timely provide accounts in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedPurchased 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 revisiondiscount, cancellationrebate, allowancecredit, discount counterclaim, billing error or other adjustment made by the Seller or any Affiliate of the Seller, Originator or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, Originator or the Servicer or any Affiliate of the 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 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(gparagraphs (e), (f) or (mk) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such date, 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, and 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 breach payment to a particular Receivable or Receivables within thirty (x30) causes the Purchased Interest to exceed 100%, (y) occurs days after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event such payment has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to been received in 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 thatApplicable Servicer, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)then, 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 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the AdministratorAgent, any the Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, such Person the Agent or the Purchaser, 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 a Seller shall wish to cause the reduction of the Aggregate Investment Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Aggregate Investmentin part), the such Seller may do so as follows:
(i) the such Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two (x) five (5) Business Days’ prior written notice thereof for in the case of any reduction of the Aggregate Investment Capital to zero (such $0) or (y) one (1) Business Day’s prior written notice to include in the case of any partial reduction of the Aggregate Capital, in either case, setting forth the proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commence)commence and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in trust a Collection Account for the benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) ’s Account on the next 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 Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) ’s Account only when in fact finally so paid; ; providedprovided that, that:
(A) the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($500,000 1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in the aggregate excess thereof for all Purchaser Groups (unless the Aggregate Investment at the time reductions of such reduction is less than $500,000U.S. Capital, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respone 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers' Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s Investment's Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer of that such Purchaser’s refusal, pursuant to Section 1.10, to extend its Purchaser (or its Committed Purchaser’s) Commitment hereunder (an a “Exiting 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 Day or a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied (or any day following the provision of an Exiting Noticea 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group ), the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Declining Conduit Purchaser’s 's or Exiting Purchaser's ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Declining Conduit Purchaser’s 's or Exiting Purchaser's ratable share of such Collections, such Declining Conduit Purchaser’s Investment 's or Exiting Purchaser's Capital shall be deemed to remain constant from the date of the provision of an Exiting 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 Investment 's or Exiting Purchaser's Capital has been paid in full; it being understood that if such day is also a Termination DayDay 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 Investment '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 Investment 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 the type described in clause (a) of the definition of “Termination Day” Exhibit II to this Agreement are not satisfied (or any day following the provision of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Administrator and a Simple Majority of the Purchasers Purchaser Agents (or in the case of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Exiting 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 Purchaser, as the case may be, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment's Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each applicable Purchaser Agent's account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into in the account from time to time specified by the Administrator, case of Collections held for each Purchaser with respect to such Purchaser's Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the benefit amount of Collections then held for the related Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of this Section 1.4; provided, that if WESCO CB or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO CB (or such Affiliate) that such right is revoked, WESCO CB (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers' Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), paragraph (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution first, to each Purchaser Agent ratably according to the Discount accrued during such 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 's Purchaser Group) in payment in full of all accrued Discount and fees Fees (other than Servicing Fees) with respect to each Portion of Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, 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’s 's own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied or on a day when the Purchased Interest exceeds 100%, first, if WESCO CB or an Affiliate thereof is not the Servicer, to the Servicer’s 's own account in payment in full of the Purchasers' Share of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s 's Purchaser GroupGroup and all accrued Fees, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s 's Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s 's Purchaser Group) in payment in full of each Purchaser’s Investment '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 secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent's Purchaser Group ratably according to Investment Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount (or, in if such day is not a Termination Day, the case 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 third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeeLC Participation Amount), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO CB or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts then due and payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed then due and payable thereto by the Seller or Servicer hereunderhereunder and, and sixth, to the Servicer’s 's own account (if the Servicer is WESCO CB or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers' Share of all accrued Servicing Fees. After the then due and payable Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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 rejected or foreclosed returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an 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 adjustment and, if and shall immediately pay any and all 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 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;
(other than an Exception Accountii) if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Pool Receivable at the time a Purchase was made with respect to such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.6(a1.4 (Collections deemed to have been received pursuant to clause (i) within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gthis paragraph (e) or (m) of Exhibit III is not true with respect are hereinafter sometimes referred to any Pool Receivable, the Seller shall be deemed to have received on such 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“Deemed Collections”), 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 a manner consistent with the oldest application and allocation procedures employed by the Servicer at such Receivable, unless such Obligor designates in writing its payment for application to specific Receivablestime; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days’ Days prior written notice thereof for any to the date of such reduction of Aggregate Investment (and each such notice to include Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respCol
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 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 Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administrator 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 Effectsegregate) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount Yield and Servicer Fee accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day Receivable Interest 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, ratably, Seller on behalf of each Purchaser Group, the remainder Investors or the Banks that hold such Receivable Interest the percentage of such Collections. Such remainder shallCollections represented by such Receivable Interest, to the extent representing a return on the Aggregate Investmentof Capital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time recomputation 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 Receivable Interest to 100%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser 2.03 (or its Purchaser Agent) has provided notice (an “Exiting Notice”) each such transaction relating to the Administratora Receivable Interest, 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) belowa "reinvestment");
(iii) if such day is a Termination Liquidation Day (or any day following the provision of an Exiting Notice)for such Receivable Interest, set aside, segregate aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser Group Investors or the Banks that hold such Receivable Interest the entire remainder of the Collections (or in the case such percentage 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 Liquidation Day occurring prior to the 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) 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 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)Agent, such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shallshall deposit into the Agent's Account, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit of Investors or the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Banks pursuant to Section 1.4(b)(i2.04(b) that represents relate to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield PeriodReceivable Interests.
(d) The Servicer Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according to Investors or the Discount accrued during such Yield Period (for the benefit of Banks that hold the relevant Purchasers within such Purchaser Agent’s Purchaser Group) Receivable Interest in payment in full of all accrued Discount Yield and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts then to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of 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, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Investors or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Servicing FeesYield, secondsecond to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth 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) Servicer in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Servicer Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullProgram Termination Date, all additional Collections with respect to the Purchased such Receivable Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) (for the benefit of each Purchaser Groupthe Purchasers), out of such Collectionsthe percentage of Collections represented by the Purchased Interest, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers' Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, the percentage of Collections represented by the Purchased Interest (to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 reinvestremit such remainder to the Seller, but shall set aside and hold in trust for the ratable benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of 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 Purchasers' Share 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))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” (or any day following the provision of an Exiting Notice) " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables 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, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Administrator), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Peabody (or such Affiliate) that such right is revoked, WESCO Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers' Share of the Servicing Fee. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described Administration Account pursuant to clause (and at the times set forth) in Section 1.4(cc), 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 Administrator for distribution to each Purchaser Agent Purchasers ratably according to the Discount accrued during such Yield Period (for the benefit based on their respective Portions of the relevant Purchasers within such Purchaser Agent’s Purchaser GroupCapital funded thereby) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account in payment in full Purchasers ratably (based on their respective Portions 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 GroupCapital funded thereby) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by Capital, second to the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent ratably (for the benefit based on their respective Portions of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing FeesCapital funded thereby) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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, third and fourth clauses of this Section 1.4(d)(ii) third, to the Purchasers within its Purchaser Group ratably according to Investment or, in LC Collateral Account for the case benefit of the third clause LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of this Section 1.4(d)(ii)cash collateral held in such LC Collateral Account equals the aggregate outstanding amount of the LC Participation Amount, fees (not including fourth, to the Servicer in payment in full of all accrued Servicing Fee)Fees, and fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital 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 Purchasers ratably (based on their respective Portions of Capital funded thereby), the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or 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 Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Groupthe Purchasers, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after the LC Participation Amount has been cash collateralized in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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, or the Servicer or any Affiliate of the Servicer 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 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(gl(g) or (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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, any Purchaser Agent Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Person Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Person Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent Administrator and the Servicer written notice in the form of Annex C (the "Paydown Notice") (A) at least two Business Days’ ' prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment Capital less than or equal to $20,000,000 and (B) at least five Business Days' prior to the date of such reduction for any reduction of Capital greater than $20,000,000, in each case such notice to 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 benefit of each Purchaser ratably according to its InvestmentPurchaser, for payment to the Administrator (for the account of such Purchaser) on the next Settlement DateDate immediately following the current Settlement Period or such other date approved by the Administrator, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) that the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction 300,000 and shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respan 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 Servicers in accordance with the terms of this Agreement. The Each Seller shall provide to the Servicer Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Each Applicable Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the a Seller or Servicer, transfer (or cause to be transferred) such Collections from the ServicerLock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a) or Section 4.3(e). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicers shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first, first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratablySellers, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investmentof 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 benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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 then all such Purchaser’s refusal, pursuant to Section 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such remaining Collections shall not be reinvested and shall instead be held in trust so set aside for the benefit of the Purchaser), rather than remitting all of such Purchaser and applied in accordance with clause (iii) belowremaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each the Purchaser Group Parties the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer Servicers for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on On each Settlement Date Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account from time to time specified designated by the Administrator, Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchasers Purchaser Parties pursuant to Sections 1.4(bSection 1.6(b) and 1.4(f)Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO no amounts shall be payable to Garland under clause (or such Affiliateii) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodabove.
(d) The Servicer shall distribute Upon receipt of funds deposited into any of the amounts described (and at the times set forth) in Purchaser’s Accounts pursuant to Section 1.4(c1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Accrual Period, second to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the aggregate most recently ended Discount Accrual Period, third to the Purchaser in payment of each outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Group’s Ratable Share Party in payment in full of accrued Servicing Fees so set asideany 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%, first, if WESCO or an Affiliate thereof is not the Servicer, following order of priority: first to the Servicer’s own account Purchaser in payment in full of all accrued Servicing Feesand unpaid Discount, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Groupand unpaid Used Fees, thirdUnused Fees and Breakage Costs, third to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersoutstanding Capital, fourth, 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 Agent and any other Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the any Seller or any Servicer hereunderhereunder (including, and sixthwithout limitation, pursuant to the Servicer’s own account (if the Servicer is WESCO Section 1.9, Section 1.10, Section 3.1, or an Affiliate thereofSection 5.4) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Feesor under any other Transaction Document. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to occurrence of the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller Sellers for its their own account. Each Purchaser Agent hereby covenants and agrees to timely provide accounts in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedPurchased 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 revisiondiscount, cancellationrebate, allowancecredit, discount counterclaim, billing error or other adjustment made by the Seller or any Affiliate of the Seller, Originator or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, Originator or the Servicer or any Affiliate of the 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 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(gparagraphs (e), (f) or (mk) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such date, 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, and 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 breach payment to a particular Receivable or Receivables within thirty (x30) causes the Purchased Interest to exceed 100%, (y) occurs days after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event such payment has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to been received in 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 thatApplicable Servicer, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)then, 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 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the AdministratorAgent, any the Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, such Person the Agent or the Purchaser, 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 a Seller shall wish to cause the reduction of the Aggregate Investment Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Aggregate Investmentin part), the such Seller may do so as follows:
(i) the such Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) three (3) Business Days’ prior written notice thereof for in the case of any reduction of Aggregate Investment the aggregate CAD Capital or EUR Capital, in either case, in the form of Annex C (such notice to include each, a “Paydown Notice”) setting forth the proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commence)commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in trust a Collection Account for the benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) ’s Account on the next 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 Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) ’s Account only when in fact finally so paid; ; providedprovided that, that:
(A) the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($500,000 1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in the aggregate excess thereof for all Purchaser Groups (unless the Aggregate Investment at the time reductions of such reduction is less than $500,000U.S. Capital, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respone million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, and (C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, in each case, unless the aggregate U.S. Capital, Euro Capital or CAD Capital, as applicable, shall have been reduced to zero.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), 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 Day (or any a day following on which the provision Commitment of an Exiting NoticePurchaser terminates), set aside, segregate aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date day on which the Commitment of the provision of an such Exiting Notice Purchaser terminates, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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 on which the provision Commitment of an such Exiting NoticePurchaser terminates) and, thereafter, the conditions set forth in Section 2 3 of Exhibit II are satisfied or waived by the Administrator and a Simple the Majority of the Purchasers 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 by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), deposit on each Settlement Date into the account from time to time specified by the Administrator(for any Portion of Capital), Collections held for the benefit of the Purchasers each Purchaser pursuant to Sections 1.4(b1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if WESCO ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO ▇▇▇▇▇ (or such Affiliate) that such right is revoked, WESCO ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentPeriod, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related such Yield PeriodPeriod or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to (based on the Discount and Fees accrued during such Yield Period 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 Investment Capital maintained by the Purchasers within such PurchasersPurchaser 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 feesFees, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, first if WESCO ▇▇▇▇▇ or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according to Investment (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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to (based on the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group 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 Investment Capital, (or, y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%; provided, that, prior to the Non-Pro Rata Funding Termination Date, so long as such day is not a Termination Day, any distribution to reduce the Purchased Interest pursuant to this clause (y) shall first be applied to the portion of the Purchased Interest relating to the MUFG Purchaser Group until the date on which no Capital in respect of such Purchased Interest shall be outstanding before reducing the Purchased Interest of the PNC Purchaser Group, or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second, second and third and fourth clauses of this Section 1.4(d)(iiclause (ii) to the Purchasers within its Purchaser Group ratably according (based on Discount and Fees and Capital, respectively), fourth, to Investment orthe LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or if a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeeLC Collateral Account), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO ▇▇▇▇▇ or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, 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 Groupthe Purchaser’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital (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 each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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. 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, 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 andand shall, if subject to Section 1.4(e)(v), immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4(b);
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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 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 respect thereof 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 and their assigns and for application pursuant to Section 1.6(a1.4(b) 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(Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 (iSections 1.4(e)(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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller shall wish wishes to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two (2) Business Days’ Days prior written notice thereof ▇▇▇▇ no later than 12:00 p.m. on the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $25,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentPurchaser, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement Date, and the Aggregate Investment Date (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 or such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respother date a
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kelly Services Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this AgreementAgreement and applicable regulatory law. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, be automatically reinvested ratably, according to each Purchaser’s InvestmentCapital, 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, (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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.10this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;.
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Noticea 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its InvestmentCapital; 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 Investment or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting 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 Investment 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 Investment 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 Investment 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 an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Administrator and a Simple Majority of the Purchasers Purchaser Agents (or in the case of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Exiting 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 Purchaser, as the case may be, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement (as notified to the Servicer by the Administrator) to the Purchasers, the LC Participants, the Purchaser Agents, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into in the account from time to time specified by the Administrator, case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the benefit amount of Collections then held for the related Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of this Section 1.4; provided, that if WESCO Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Triumph (or such Affiliate) that such right is revoked, WESCO Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Day:
(1) first, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such 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 Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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:
(1) first, if WESCO Triumph or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, ,
(2) second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to Investment 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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, ,
(3) third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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 aggregate outstanding amount of the LC Participation Amount) and (y) an amount equal to 100%); it being understood that each Purchaser Agent shall distribute the amounts described LC Fee Expectation at such time (or such portion thereof not currently on deposit in the second, third and fourth clauses of this Section 1.4(d)(iiLC Collateral Account);
(5) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Triumph or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts then due and payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed then due and payable thereto by the Seller or Servicer hereunder, and and
(6) sixth, to the Servicer’s own account (if the Servicer is WESCO Triumph or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator 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. 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, 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 and shall immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to this Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $20,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respsha
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate InvestmentCapital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.12, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;,
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the Purchasers the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections based on its InvestmentCollections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on of Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment(determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date into (or, solely with respect to Collections held for the account from time Purchasers pursuant to time specified Section 1.6(f)(iii), such other date approved by the AdministratorAdministrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit Purchasers pursuant to Section 1.6(b)(i) or 1.6(f) plus the amount of Collections then held for the Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of Section 1.6; provided, that if WESCO Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Peabody (or such Affiliate) that such the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, WESCO Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i1.6(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share Servicing Fee in payment in full of the accrued Servicing FeeFees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all accrued Discount and fees (other than Servicing Fees) Fees with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest Assets Coverage Percentage exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Servicing FeesDiscount and Fees with respect to each Portion of Capital, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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); it being understood that each Purchaser Agent shall distribute , third, to the amounts described 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 secondLC Collateral Account to equal the aggregate outstanding amount of the LC Participation Amount (or, third and fourth clauses 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 this Section 1.4(d)(ii) the LC Participation Amount), fourth, to the Purchasers within its Purchaser Group ratably according to Investment or, Servicer in the case payment in full of the third clause of this Section 1.4(d)(ii), fees (not including the all accrued Servicing Fee)Fees, fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Agents (for the benefit of such Purchaser Agent and the Purchasers within such in their respective Purchaser Group) Groups), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to after the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full occurrence of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide account in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedsuch 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 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 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 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(gl(g) or (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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)) 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Person Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Person Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) (A) at least two Business Days’ prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment Capital less than or equal to $20,000,000 and (B) at least five Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital greater than $20,000,000, in each case such notice to 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 benefit of the Administrator (for the benefit of each Purchaser ratably according to its InvestmentPurchaser), for payment to the Administrator (for by deposit into the account of such Purchaser) Administration Account on the next Settlement DateDate immediately following the current Settlement Period or such other date approved by the Administrator and the Majority Purchaser Agents, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) that the amount of any such reduction shall be not less than $500,000 300,000 and shall be an integral multiple of $100,000. Upon receipt by the Administrator in the aggregate for all Purchaser Groups (unless Administration Account of any amount paid in reduction of the Aggregate Investment at Capital pursuant to sub-clause (iii) above, the time Administrator shall cause such funds to be distributed to the Purchaser Agents (for the benefit of such reduction is less than $500,000, the Purchasers in which case such reduction shall be their respective Purchaser Groups) in the amount required to reduce the Aggregate Investment to zero); and
(B) with resppayment 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 Administrator Servicer and its Affiliates (with a) in such Collection Accounts as permitted herein or (b) in a Permitted Linked Account) for the consent or at the direction of a Simple Majority benefit of the Purchasers)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 ifAdministrative Agent, at which shall be an account maintained and/or controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment 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 each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 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 may (A) release to the SPE from Collections received on SPE Collateral the amount (if any) necessary to pay the purchase price for Receivables purchased by the SPE on such date in accordance with the terms of the Transfer Agreement and hold (B) release to the SPE all or a portion of Collections received on Sold Assets in trust exchange for the SPE designating an equivalent amount (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on SPE’s books and records pursuant to Section 2.01(e), which new Sold Receivables will be automatically and immediately sold by the SPE to the Administrative Agent (for the ratable benefit of the Purchasers Purchaser/Lenders) pursuant to Section 2.01(b) upon such release (each such release of Collections described in clauses (A) and shall(B) above, at a “Release”). On each Settlement Date, the request Servicer (so long as the Administrative Agent has not taken exclusive control of the Administrator Collection Accounts) shall distribute such Collections (with the consent or at the direction or, following its assumption of a Simple Majority exclusive control of the PurchasersCollection 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), segregate (w) all unpaid Yield accrued on such Purchaser/Lender’s Capital with respect to the Yield Period most recently ended prior to such Settlement Date, (x) all unpaid Fees accrued up to (but not including) such Settlement Date, (y) any indemnity payments under Section 4.02 due to such Purchaser/Lender and other Purchaser/Lender Party, and (z) any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in a separate account approved by the Administrator if, at the time respect of such requestpayments;
(iii) third, there as set forth in clause (A), (B) or (C) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Capital Coverage Amount Deficit exists an Unmatured Termination Event or a Termination Event or if on such date, to the failure to so segregate reasonably could be expected to cause a Material Adverse EffectPurchaser/Lenders (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Capital Coverage Amount Deficit to 100%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iiiB) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator Termination Date, to each Purchaser/Lender (with ratably, based on the consent or aggregate outstanding Capital of each Purchaser/Lender at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administratorsuch time) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andsuch Purchaser/Lender at such time; or
(iiC) if such distribution occurs on a prior to the occurrence of the Termination Day or on a day when Date, at the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not election of the ServicerSPE and in accordance with Section 2.03(d), to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit or any portion of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit outstanding Capital of the relevant Purchasers within Purchaser/Lenders at such Purchaser Agent’s Purchaser Grouptime (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such time);
(iv) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator Secured Parties (ratably, based on the amount due and owing at such time), for distribution to each Purchaser Agent ratably according the payment of all other SPE Obligations then due and owing by the SPE to the aggregate of Secured Parties; and
(v) fifth, 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 (orbalance, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in fullany, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller SPE for its own account. Each Purchaser Agent hereby covenants For the avoidance of doubt, the amounts payable at each level of priority above include all such amounts at such level of priority, whether attributable to Investments, Investment Capital, Loans or Loan Capital, on a pari passu basis. To the extent payable in respect of Investment Capital or Yield, Fees or other amounts attributable to Investment Capital, amounts payable pursuant to each of clauses first through fourth above shall be paid (at each level of priority) first from available Collections on Sold Receivables and agrees other Sold Assets, and second, to timely provide the Administrator with extent necessary in order to make all information necessary 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 Administrator 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 the allocations 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 Purchaser Agents required 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 Administrator pursuant Servicer, the SPE and any other Person to Sections 1.4(d) and 1.4(fany Purchaser/Lender Party (or its respective related Secured Parties), including the applicable account of each Purchaser Agent for which amounts should shall be distributedpaid or distributed to such Purchaser/Lender Party.
(ec) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 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 If and to the extent the Administrator, any Purchaser Administrative Agent or any Purchaser 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 such Person but rather to have been retained by the Seller SPE and, accordingly, the Administrative Agent or such Person 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of if such request, there exists an Unmatured Termination Event or day is a Termination Event or if Day, transfer to the failure to so segregate reasonably could be expected to cause a Material Adverse EffectLiquidation Account) for the benefit of each Purchaser Groupthe Purchaser, out of the 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 Investment and not previously set aside, aside and second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable 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, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of the percentage of such Collections. Such remainder shall, represented by the Participation, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 paragraph (iii) below;
(iii) if such day is a Termination Day Day, (or any day following A) transfer to the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Liquidation Account for the benefit of each the Purchaser Group (x) the amounts set aside in the Collection Account for the 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 percentage of the Collections represented by the Participation; 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 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 Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable Collection Account represented by the Seller's 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 if any; provided that so long as the date of the provision of an Exiting Notice until the date such Purchaser’s Investment Facility Termination Date has been paid in full; it being understood that not occurred 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 any amounts are set aside and held in trust so transferred to the Liquidation Account pursuant to clause (B) above 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, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are 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)Agent, such previously set-set aside amounts shall, shall be distributed 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) Seller on the day of such subsequent satisfaction or waiver of conditions 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 revocation of such Exiting Noticeany 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 of event the Servicing Fee accrued and unpaid through such day and Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of the such Servicer for of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dPurchaser's Account (or such other account designated by the Agent), deposit on the last day of each Settlement Date into the account from time Period relating to time specified by the Administrator, a Portion of Investment:
(i) Collections held on deposit in the Collection Account and the Liquidation Account for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Purchaser pursuant to Section 1.4(b)(i) that represents in respect of accrued Discount and the aggregate Program Fees and Commitment Fees with respect to such Portion of each Purchaser Group’s Ratable Share Investment;
(ii) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Collection Account and the Liquidation Account pursuant to Section 1.4(b)(i) in respect of the accrued Servicing Fee. Within three Business Days , an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the last day of each Yield Period Purchaser's Account pursuant to Section 1.4(c) with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect shall cause such funds to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 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 such Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Investment, second, to the Purchasers within its Purchaser Group ratably according to Discount in payment of accrued and feesunpaid 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’s own account Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 Day, first to the Purchased Interest exceeds 100%Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, firstsecond to the Purchaser in payment in full of such Portion of Investment, third to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, fourth, if WESCO Seller or an Affiliate thereof any of its Affiliates is not the Servicer, to the Servicer’s own account Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Investment, secondand fifth, to if 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 and accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereofthe Seller) have been paid in full, to the Administrator for distribution ratably to each Purchaser Purchaser, the Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, hereunder and sixth, then to the Servicer’s own account Servicer (if the Servicer is WESCO or an Affiliate thereofthe Seller) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate DiscountProgram Fees, fees payable pursuant to each Purchaser Group Fee Letter Discount and Servicing Fees with respect to the Purchased InterestParticipation, and any other amounts payable by the Seller and to the Servicer to each Purchaser GroupPurchaser, 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. 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 revisiondiscount, cancellation, allowance, discount rebate or other adjustment made by the Seller or any Affiliate of the Seller, any Originator or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, any Originator or the Servicer or any Affiliate of (if the Servicer is IDI or an Affiliate 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 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(gparagraphs (f) or (ml) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 paragraph (i) or (ii) of this Section 1.4(e), or as otherwise required by Applicable Law 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentInvestment of the Participation), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two five Business Days’ ' prior written notice thereof for any reduction of Aggregate Investment (such notice to include including the amount of such proposed reduction and the proposed date on which such reduction will commence);,
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Investment not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; , and
(iii) the Servicer shall hold such Collections in trust the Liquidation Account for the benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) Agent on the next last day of the current Settlement DatePeriod relating to such Portion of Investment, and the Aggregate applicable Portion of 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) Agent only when in fact finally so paid; ; provided, provided that:,
(A) A. the amount of any such reduction shall be not less than $500,000 5,000,000 and shall be an integral multiple of $1,000,000, 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 aggregate for all Purchaser Groups (unless the Aggregate same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such reduction is less than $500,000, in which case such proposed reduction shall be applied, unless the Seller shall otherwise specify in the amount required notice given pursuant to reduce Section 1.4(f)(i), to the Aggregate Portion of Investment to zero); and
(B) with respthe 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 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent when an Amortization Event exists, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time 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 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 is satisfied on such requestdate, there exists an Unmatured Termination Event (A) the Master Servicer may release to Seller from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by Seller on such date in accordance with the terms of the Sale Agreement and (B) the Master Servicer may release to Seller all 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 received on Sold Receivables in exchange for 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(c), shall which new Sold Receivables will be automatically and immediately sold by 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, from and after the Dominion Date, 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 of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to the Master Servicer);
(ii) second, to the Administrative Agent for distribution to the Purchaser Parties (ratably, based on the amount then due and owing), all accrued and unpaid Yield and Fees due to each Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.04 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 13.04 in respect of such payments) payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
(x) prior to the occurrence of the Amortization Date and so long as the Interim Reports are not then being required to be delivered, to the extent that a Capital Coverage Deficit exists on such date, to the Administrative Agent for distribution to the Purchasers (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) for the 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%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0.00);
(iiiy) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shallAmortization Date, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Administrative Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesratably, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears based on each Settlement Date) in payment in full of the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 return in full of the Purchasers for application pursuant to Section 1.6(a) within one Business Day aggregate outstanding Capital of such reduction or adjustment;Purchaser at such time; or
(iiz) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III is not true with respect prior to any Pool Receivable, the Seller shall be deemed to have received on such 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 Amortization Date, at any time when the Purchased Interest exceeds 100% election of Seller and in accordance with Section 2.02(d), to the Administrative Agent for distribution to each Purchaser for the return of all or any Termination Event has occurred and is continuingportion of the outstanding Capital of the Purchasers at such time (ratably, based on the Seller shall pay the amount aggregate outstanding Capital of such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator each Purchaser 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 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 fourth, to the extent the Administrator, any Purchaser Administrative Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and distribution to the extent that any distribution from or Indemnified Parties (ratably, based on behalf of the amount due and owing at such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investmenttime), for the payment of all other Seller may do so as follows:
(i) Obligations then due and owing by Seller to the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reductionIndemnified Parties; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request Administrative Agent when an Event of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Termination exists, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time 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 Lock-Box Account); provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such requestdate, there exists an Unmatured Termination Event (A) the Master Servicer may release to the Seller from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the Purchase and Sale Agreement and (B) the Master Servicer may release to the Seller all 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 received on Sold Receivables in exchange for the other Collections set aside pursuant to this paragraph, shall equal the Seller designating an equivalent amount necessary to reduce the Purchased Interest to 100%; provided, further, that if the Facility Termination Date has been extended (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 1.10 2.01(e), which new Sold Receivables will be automatically and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) immediately sold by the Seller to the Administrator, Administrative Agent (for the Seller and ratable benefit of the Servicer of such Purchaser’s refusal, Purchasers) pursuant to Section 1.102.01(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 Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, 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 the Master Servicer for the benefit 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 Master Servicer); 758444419 21691544 39
(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 applied other Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in accordance with clause respect of such payments), plus, if applicable, the amount of any such Yield and Fees (iiiincluding any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) belowpayable 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 Day (or any day following the provision of an Exiting Notice)third, as set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described forth 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 Servicerx), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 continuingbelow, 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as followsapplicable:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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, after the occurrence of a Termination Event or Unmatured Termination Event at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser GroupIssuer, 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 Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Issuer (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date Issuer's Share 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))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” (or any day following the provision of an Exiting Notice) " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; 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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Administrator), deposit on each Settlement Date into (or solely with respect to Collections held for the account from time Issuer pursuant to time specified clause (f)(iii) such other date approved by the AdministratorAdministrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit of the Purchasers Issuer pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO C▇▇▇▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not both a Termination Day and a day upon which the Administrator has not notified WESCO C▇▇▇▇▇▇▇▇ (or such Affiliate) that such 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, WESCO C▇▇▇▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing FeeFee in payment in full of the Issuer's Share of accrued servicing fees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described Administration Account pursuant to clause (and at the times set forth) in Section 1.4(cc), 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 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) Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Issuer in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupCapital, third, second to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) Issuer in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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, third and fourth clauses of this Section 1.4(d)(ii) third, to the Purchasers within its Purchaser Group ratably according to Investment orServicer in payment in full of all accrued Servicing Fees, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifthand fourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital 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 Issuer, the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or 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 Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Groupthe Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional and/or remaining 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, or the Servicer or any Affiliate of the Servicer 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 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 (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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, any Purchaser Agent Administrator or any Purchaser 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 such Person the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, such Person 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 Aggregate Investment the Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent Administrator and the Servicer written notice in the form of Annex C (A) at least two Business Days’ ' prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment Capital less than or equal to $10,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of Capital greater than $10,000,000 in each case such notice to 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 benefit of each Purchaser ratably according to its InvestmentIssuer, for payment to the Administrator on (for the account of such Purchaser1) on the next Settlement DateDate immediately following the current Settlement Period or (2) such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital 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 (Aa) the amount of any such reduction shall be not less than $500,000 in 1,000,000 and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless entire Capital of the Aggregate Investment at the time of such reduction is less than $500,000, in which case Purchased Interest after giving effect to such reduction shall be not less than $20,000,000 (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 amount required to reduce the Aggregate Investment to zero); and
(B) with respsame Settlement Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Carpenter Technology 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s 's Ratable Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s '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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a "Declining Notice") to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a "Declining Conduit Purchaser") no longer wishes Collections with respect to any Portion of Investment funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “"Exiting Notice”") to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s either its refusal, pursuant to Section 1.101.10(a), to extend its (Commitment hereunder or of its Committed Purchaser’sdesire pursuant to Section 1.10(b) to terminate its Commitment hereunder (in either case, an “"Exiting Purchaser”") then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s 's ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s 's ratable share of such Collections, such Purchaser’s 's Investment shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s 's Investment 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 's Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “"Termination Day” " (or any day following the provision of a Declining Notice or 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 a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduct Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s 's Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Declining Notice 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 's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser's account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit each Purchaser with respect to such Purchaser's Portion(s) of the Purchasers Investment pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s 's Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield PeriodPeriod then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s 's own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s 's Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s '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 's Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s 's Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s 's Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s 's Purchaser Group) in payment in full of each Purchaser’s 's Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, to each non-Group A Purchaser Agent ratably according to the aggregate of the Investment of each non-Group A Purchaser in each such non-Group A Purchaser Agent's Purchaser Group (for the benefit of the relevant non-Group A Purchasers within such non-Group A Purchaser Agent's Purchaser Group) in payment in full of the aggregate outstanding principal balance of each such non-Group A Purchaser's Investment to the extent not paid pursuant to the fourth clause of this Section 1.4(d)(ii), sixth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts amounts) owed thereto by the Seller or Servicer hereunder, and sixthseventh, to the Servicer’s 's own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate Aggregate of each Purchaser Group’s 's Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ ' prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days' prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice to shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $200,000,000 and shall be in the aggregate for all Purchaser Groups an integral multiple of $1,000,000 (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment have been reduced to zero); and
(B) with resprespect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request Administrative Agent during the continuance of the Administrator (with the consent an Event of Termination or at the direction of a Simple Majority of the Purchasers)Non-Reinvestment Event, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time of such requestAdministrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), 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 for application in accordance with the other priority of payments set forth below, all Collections set aside pursuant to this paragraphon Pool Receivables that are received by the Servicer or the Seller or received in any Blocked Account, shall equal the amount necessary to reduce the Purchased Interest to 100%Lock-Box or Collection Account; provided, furtherhowever, 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request so long as each of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 of Exhibit II 6.03 are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, on 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 Administratordate, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) Servicer may release to the Seller from such Collections the amount (subject if any) necessary to Section 1.4(f)) for its own account any Collections in excess of: pay (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yi) the amounts that are required to be set aside pursuant to clause (i), purchase price for Receivables purchased by the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through Seller on such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, date in accordance with the priorities set forth in Section 1.4(dterms of the Purchase and Sale Agreement or (ii) amounts owing by the Seller to the Originators under the Subordinated Notes (each such release, a “Release”), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit which Release constitutes payment of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued Deferred Purchase Price with respect to such Portion of Investment during Receivables. On each Settlement Date, the related Yield PeriodServicer (or, following its money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC) and (vii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing.
(db) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Administrative Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser GroupSecured Parties) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) shall have, with respect to each Portion of Investment maintained by such Purchasersall the Support Assets, fourth, and in addition to all the other rights and remedies available to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Administrative Agent (for the benefit of the Purchasers within such Purchaser Group) Secured Parties), all the Administrator, each Indemnified Party rights and each Affected Person, in payment in full remedies of a secured party under any other amounts owed thereto by applicable UCC. The Seller hereby authorizes the Seller or Servicer hereunder, and sixth, Administrative Agent to file financing statements describing the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full collateral covered thereby as “all of the aggregate of each Purchaser Groupdebtor’s Ratable Share of all accrued Servicing Fees. After personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid collateral described 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 distributedthis Agreement.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied or on a day when the Purchased Interest exceeds 100%, first, if WESCO CB or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment 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 such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupGroup and all accrued Fees, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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 secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment 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 LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount (or, in if such day is not a Termination Day, the case 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 third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeeLC Participation Amount), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO CB or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts then due and payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed then due and payable thereto by the Seller or Servicer hereunderhereunder and, and sixth, to the Servicer’s own account (if the Servicer is WESCO CB or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After such LC Participant’s Pro RataRatable Share of the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee 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 each Purchaser Groupamount 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 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 distributedrespectively.
(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, 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 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 andLC Participant’s Pro RataRatable Share of such amount by no later than 2:00 p.m., New York time on the Reimbursement Date (or, if such reduction or adjustment Reimbursement Date is the Drawing Date, 12:00 noon, New York time on the Business Day immediately following such Reimbursement Date) (xthe date on which an LC Participant is obligated to make available to the LC Bank the amount of such LC Participant’s Pro RataRatable Share is referred to as the “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 LC Participant makes such payment (i) causes at a rate per annum equal to the Purchased Interest Federal Funds Rate during the first three days following the LC Participant Reimbursement Date and (ii) at a rate per annum equal to exceed 100%, (y) occurs 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 Facility Termination LC Participant Reimbursement Date, but failure of the LC Bank to give any such notice on the 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 (zc), provided that such LC Participant shall not be obligated to pay interest as provided in clauses (i) 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 above until and commencing from the date of receipt of notice from the representations LC Bank or warranties in Section 1(g) or (m) the Administrator of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 LC Participant Reimbursement Date. Each LC Participant’s Commitment shall continue until the last to occur of 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
following events: (A) the amount LC Bank ceases to be obligated to issue or cause to be issued Letters of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000Credit hereunder, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respno Letter of Credit issued hereunder remains outstanding and uncancelled or (C) all Persons (other than the Seller) have been fully reimbursed for all payments made under or relating to Letters of Credit.
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, Collection Account an amount equal to the Aggregate 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 Investment 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 each Purchaser Group 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 aggregate 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day or the Seller has requested a reduction of Capital pursuant to Section 1.4(f)(iii), to the Administration Account (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate ------------------- such other account approved designated by the Administrator) for ), the benefit aggregate outstanding Capital of each Purchaser Group the entire remainder of the Collections all Purchasers (or 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 Exiting Affiliate thereof), any accrued and unpaid Servicing Fee for the related Fixed Period; and
(E) fifth, if (i) such Settlement Date is not a ----- Termination Day and to the extent the applicable conditions set forth in 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 (expressed 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 Settlement Date is not a Termination Day, to the extent it would have been a return of Capital upon remittance to each 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 Purchaser shall be deemed to remain constant from have reinvested the date percentage of Collections represented by the provision Purchased Interest of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if Purchaser not distributed to such day is also a Termination Day, Purchaser and such Exiting Purchaser’s Investment Purchased Interest shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside automatically recomputed pursuant to Section 1.4(b)(i) that represents 1.3. To the aggregate extent there ----------- are not sufficient funds available to distribute all amounts within a given level of each Purchaser Group’s Ratable Share priority, such available funds will be distributed within such level of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of priority on a pro rata basis based on the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodthen due and unpaid.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described (and at the times set forth) in Administration Account pursuant to Section 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant applicable 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 on each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital), and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) applicable Securitization Parties in payment in full of ------ any accrued and unpaid Administration Fee, Program Fee and Liquidity Fee, and third, to the aggregate applicable Purchasers as a ----- reduction of each Purchaser Group’s Ratable Share Capital of accrued Servicing Fees so set asidesuch 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, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account applicable Purchasers in payment in full of all ----- accrued Servicing FeesDiscount (on each Portion of Capital), 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) ------ applicable Securitization Parties in payment in full of all such any accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Groupand unpaid Administration Fee, Program Fee and Liquidity Fee, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant applicable Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of ----- all such accrued fees (other than Servicing Fees) with respect to each Portion Capital of Investment maintained by such Purchasers, and fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment Capital and ------ accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have Purchasers has been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if Securitization Party and any other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each or 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 Aggregate Investmentaggregate outstanding Capital of all Purchasers and Discount (on each Portion of Capital) of all Purchasers and any Administration Fee, Aggregate DiscountProgram Fee, fees payable pursuant to each Purchaser Group Liquidity Fee Letter and Servicing Fees with respect to the Purchased InterestFee, and any other amounts payable by the Seller and to the Servicer to each Purchaser Group, 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. Each Purchaser Agent hereby covenants and agrees To the extent there are not sufficient funds available to timely provide the Administrator with distribute to all information necessary for the Administrator to make the allocations to the Purchaser Agents required to Purchasers all amounts within a given level of priority, such available funds will be made distributed by the Administrator pursuant within such level of priority on a pro rata basis based on the amount then due and unpaid to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributedsuch 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, 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 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 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 Dilution and is continuing, the Seller shall pay an immediately deposit such amount equal into the Collection Account for distribution in accordance with this Section 1.4; ----------- provided, however, that to the extent such reduction or adjustment amount would be -------- ------- immediately remitted 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 Seller pursuant to the proviso in Section 1.6(a) within one Business Day of 1.4(b)(ii), such reduction or adjustmentdeposit 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 (mn) of Exhibit 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 date, day a Collection of such Pool Receivable in full, 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 immediately deposit such amount into 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 distribution in accordance with this Section 1.4(d)(ii1.4; ----------- 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), the Administrator’s such deposit and each other Purchaser’s rights in such Receivable shall automatically remittance may be conveyed to the Seller, without representation or warranty, but free and clear of all liens, security interests, charges and encumbrances created made by or through the Administrator or any Purchaser;
(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------------------ book-entry only; and
(iviii) if and to the extent the Administrator, any Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller and, accordingly, such Person 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 the Seller shall wish to cause the reduction of Aggregate Investment the aggregate outstanding Capital of all Purchasers (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of all 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, each Purchaser Agent and the Servicer at least two Business Days’ prior Administrator written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence)occur by no later than the Required Notice Days prior to the date on which such reduction will occur;
(iiiii) on the proposed date of 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 for the benefit of each Purchaser ratably according pursuant to its Investment, for payment to the Administrator (for the account of such PurchaserSection 1.4(b)(ii) on such date ------------------ into the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced Administration Account for distribution in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respaccordance 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.
(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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the sum of (i) the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, (ii) an amount equal to the fees set forth in each Purchaser Group 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 aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratablybe automatically reinvested, ratably according to each Purchaser’s InvestmentCapital, be automatically reinvested 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 Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.13, to extend its (or its Committed Purchaser’s) Commitment the then-scheduled Facility Termination Date hereunder (an “Exiting Purchaser”) then in either case set forth in subclauses (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables 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, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the Purchasers amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b1.4(b)(ii) and 1.4(f1.4(b)(iii); provided, that if WESCO Cloud Peak or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Cloud Peak (or such Affiliate) that such right is revoked, WESCO Cloud Peak (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee. Within three Not later than 1 Business Days of the last day of Day prior to each Yield Period with respect to any Portion of InvestmentSettlement Date, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-electronic mail of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Settlement Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Day:
(for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser GroupA) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the accrued Servicing Fees so set aside, ; and
(iiB) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment 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 Investment Capital maintained by such Purchasers and all such accrued Fees owing to such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, respectively; and
(ii) if such distribution occurs on a Termination Day:
(A) first, to the Servicer (if the Servicer is not Cloud Peak of an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent Group and all accrued Fees;
(for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser GroupC) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in 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%)Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment orDiscount, Fees and Capital, respectively;
(D) 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 a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the case of the third clause of this Section 1.4(d)(iiLC Collateral Account), fees ;
(not including the Servicing Fee), E) fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the Administrator for distribution ratably remaining amounts, if any, payable to each Purchaser Agent in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and ; and
(F) sixth, to the Servicer’s own account Servicer (if the Servicer is WESCO Cloud Peak or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and 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. 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, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall (i) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (ii) if such reduction or adjustment (x) causes the Purchased Interest to exceed 100%day is a Termination Day, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at promptly, and in any time when the Purchased Interest exceeds 100% or event within one Business Day, pay any Termination Event has occurred and is continuing, the Seller shall pay an amount equal to all such reduction or adjustment amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, 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 immediately 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed 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 the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days’ Days prior written notice thereof for any to the date of such reduction of Aggregate Investment (and each such notice to include Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate (or such other date as agreed to by the Administrator and Seller) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Settlement Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate 100,000 for all each Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction Group and shall be an integral multiple of $100,000 in the amount required to reduce the Aggregate Investment excess thereof, and unless reduced to zero); and
(B) with resp, 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time of such requestAdministrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), 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 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 Servicer or the Purchased Interest to 100%Seller or received in any Lock-Box or Collection Account or in any HSBC Exception Account; provided, furtherhowever, 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request so long as each of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions precedent set forth in Section 2 of Exhibit II 5.03 are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, on 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 Administratordate, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) Servicer may release to the Seller from such Collections the amount (subject if any) necessary to Section 1.4(f)) for its own account any Collections in excess of: pay (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yi) the amounts that are required to be set aside pursuant to clause (i), purchase price for Receivables purchased by the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through Seller on such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, date in accordance with the priorities set forth in Section 1.4(dterms of the Purchase and Sale Agreement or (ii) amounts owing by the Seller to any Originator under any Intercompany Loan Agreement (each such release, a “Release”), deposit on . On each Settlement Date into Date, the account from time to time specified by the AdministratorServicer (or, Collections held for the benefit following its assumption of control of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Collection Accounts pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment8.03, the applicable Purchaser Agent will notify Administrative Agent) shall, distribute such Collections in the Servicer and the Administrator by e-mail following order of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Yield Period to the Servicer (if other than WESCO or an Affiliate thereof) have extent such amount has not been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, distributed to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) second, to the Administrative Agent for distribution to each Purchaser (ratably, based on the proposed date of commencement 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 reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Yield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Yield Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Purchaser or Purchaser Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Sources: Receivables Purchase Agreement (Centric Brands Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Issuer (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respthe
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by in the Administrator if, name of the Seller held 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 EffectAdministrator) for the benefit of each Purchaser Group, out 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 Investment 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 each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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 each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if, as of any date following the Facility Termination Date has date on which any amounts have been extended set aside due to a shortfall pursuant to Section 1.10 the immediately preceding proviso (such amount, a “Purchased Interest Shortfall”) but prior to the Settlement Date on which such amounts are to be remitted to each Purchaser Agent’s Account or the LC Collateral Account, the Purchased Interest Shortfall is reduced (without giving effect to any funds set aside pursuant to such proviso), the Servicer shall remit to the Seller from amounts set aside pursuant to such proviso, an amount equal to the lesser of (1) the amount so set aside during the current Calculation Period, and (2) an amount necessary to reduce the Purchased Interest to 100%, promptly following notice to the Administrator including reasonable supporting information; provided, further, that in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), 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 Day (or any a day following on which the provision Commitment of an Exiting NoticePurchaser 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date day on which the Commitment of the provision of an such Exiting Notice Purchaser terminates, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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 on which the provision Commitment of an such Exiting NoticePurchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple the Majority of the Purchasers 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 by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), deposit on each Settlement Date into the account from time to time specified by the Administrator(for any Portion of Capital), Collections held for the benefit of the Purchasers each Purchaser pursuant to Sections 1.4(b1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if WESCO VWR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO VWR (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentCalculation Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail email communications or other electronic delivery of the amount of the Discount accrued with respect to such its Portion of Investment Capital during the related Yield Periodsuch Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), in each case, to the extent of funds available therefor, as follows:
(i) if such distribution occurs on a day that is not a Termination Day Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Administrator for distribution Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the accrued and unpaid Servicing Fees so set aside, and second, to each Purchaser Agent ratably according to (based on the Discount and Fees accrued during such Yield Period 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 Investment Capital maintained by the Purchasers within such PurchasersPurchaser 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)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set asideFees, 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 WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account in payment in full of all accrued and unpaid Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according to Investment (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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to (based on the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group 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 Investment Capital, (or, 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, second and third and fourth clauses of this Section 1.4(d)(iiclause (ii) to the Purchasers within its Purchaser Group ratably according (based on Discount and Fees and Capital, respectively), fourth, to Investment or, in the case LC Collateral Account for the benefit of the third clause LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of this Section 1.4(d)(ii)cash collateral held in such LC Collateral Account equals (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0 and/or €0, fees as applicable) and (not including B) an amount equal to the Servicing Fee), LC Fee Expectation and fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or 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 Aggregate InvestmentCapital (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 each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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. 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, 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 andand shall, if subject to Section 1.4(e)(v), immediately pay any and all 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 amounts in respect thereof to a Lock-Box Collection Account (other than an Exception 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(a) within one Business Day of such reduction or adjustment1.4(b);
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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 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 respect thereof to a Lock-Box Collection Account (other than an Exception 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(a1.4(b) 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(Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 (iSections 1.4(e)(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; andspecified an applicable Receivable;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Collection Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller shall wish wishes to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two (2) Business Days’ Days prior written notice thereof for any reduction to the date of Aggregate Investment (such notice to include reduction, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer Seller shall set aside (or cause to be set aside) and hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced date specified in the amount Paydown Notice (or such other date as agreed to be paid to by the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(BAdministrator) with resprespect to any Porti
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Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicers in accordance with the terms of this Agreement. The Seller shall provide to the Servicer Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Each Applicable Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or a Servicer, transfer (or cause to be transferred) such Collections from the ServicerLock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicers shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first, first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investmentof 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 benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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 then all such Purchaser’s refusal, pursuant to Section 1.10, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such remaining Collections shall not be reinvested and shall instead be held in trust so set aside for the benefit of the Purchaser), rather than remitting all of such Purchaser and applied in accordance with clause (iii) belowremaining Collections to the Seller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate aside and hold maintain in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each the Purchaser Group Parties the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer Servicers for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on On each Settlement Date Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account from time to time specified designated by the Administrator, Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchasers Purchaser Parties pursuant to Sections 1.4(bSection 1.6(b) and 1.4(f)Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO no amounts shall be payable to Garland under clause (or such Affiliateii) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Periodabove.
(d) The Servicer shall distribute Upon receipt of funds deposited into any of the amounts described (and at the times set forth) in Purchaser’s Accounts pursuant to Section 1.4(c1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Accrual Period, second to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the aggregate most recently ended Discount Accrual Period, third to the Purchaser in payment of each outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Group’s Ratable Share Party in payment in full of accrued Servicing Fees so set asideany 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%, first, if WESCO or an Affiliate thereof is not the Servicer, following order of priority: first to the Servicer’s own account Purchaser in payment in full of all accrued Servicing Feesand unpaid Discount, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Groupand unpaid Used Fees, thirdUnused Fees and Breakage Costs, third to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasersoutstanding Capital, fourth, and 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 Agent and any other Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or any Servicer hereunderhereunder (including, and sixthwithout limitation, pursuant to the Servicer’s own account (if the Servicer is WESCO Section 1.9, Section 1.10, Section 3.1, or an Affiliate thereofSection 5.4) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Feesor under any other Transaction Document. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to occurrence of the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide accounts in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedPurchased 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 revisiondiscount, cancellationrebate, allowancecredit, discount counterclaim, billing error or other adjustment made by the Seller Seller, any Originator or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller Seller, any Originator or any Affiliate of the Seller, or the Servicer or any Affiliate of the 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 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(gparagraphs (e), (f) or (mk) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such date, 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, and 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 breach payment to a particular Receivable or Receivables within thirty (x30) causes the Purchased Interest to exceed 100%, (y) occurs days after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event such payment has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to been received in 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 thatApplicable Servicer, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii)then, 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 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the AdministratorAgent, any the Purchaser Agent or any Purchaser 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 such Person but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, such Person the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the Aggregate Investment Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Aggregate Investmentin part), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two (x) one (1) Business Days’ Day’s prior written notice thereof for in the case of any reduction of Aggregate Investment the aggregate U.S. Capital or (such y) one (1) Business Day’s prior written notice to include in the case of any reduction of the aggregate CAD Capital, EUR Capital or GBP Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commence)commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in trust a Collection Account for the benefit of each Purchaser ratably according to its Investmentthe Purchaser, for payment to the Administrator (for the account of such Purchaser) ’s Account on the next 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 Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) ’s Account only when in fact finally so paid; ; providedprovided that, that:
(A) the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($500,000 1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in the aggregate excess thereof for all Purchaser Groups (unless the Aggregate Investment at the time reductions of such reduction is less than $500,000U.S. Capital, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(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 resprespect 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 On each Deposit Date during each Fixed Period during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Collection Agent shall instruct the Trustee in a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at such time and in the following order:
(i) [Intentionally Omitted]
(ii) out of the Pool Receivables related Collections, allocate to, and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, an amount equal to the sum of (x) the Yield/Fee Amount for each Fixed Period commencing on or before such Deposit Date, plus (y) during the Term Period for any Group, the Excess Interest accrued through such Deposit Date in respect of all Cash Secured Advances, in each case to the extent the same has not been previously so allocated; and
(iii) deposit to the Borrower's Account the remainder of such Collections; provided, however, that the portion of the amounts allocable to the Trustee's expenses and held in the Trustee's Account shall only be administered in an amount equal to the unpaid expenses and disbursements owed or reimbursable under the Transaction Documents actually incurred by the Servicer Trustee (as certified in accordance reasonable detail to the Collection Agent in writing by the Trustee) during the Fixed Period ending on the last day of the most recent Month or remaining unpaid with this Agreementrespect to any prior Fixed Period. The Seller shall provide Daily Report delivered by the Collection Agent to the Servicer Trustee on a timely basis all information needed the first day of each Fixed Period shall set forth the Yield/Fee Amount for such administrationFixed Period and during the Term Period for any Group, including notice of the occurrence of any Termination Day and current computations of the Purchased Interestestimated Excess Interest for such Fixed Period.
(b) The Servicer On each Deposit Date during each Fixed Period if and so long as a Cure Period shall have occurred and be continuing, the Collection Agent shall instruct the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, on each day on which Collections of Pool Receivables are received (or deemed received) by at that time and in the Seller or the Servicerfollowing order:
(i) [Intentionally Omitted]
(ii) out of the related Collections, allocate to, and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, an amount equal to the sum of (x) the Yield/Fee Amount for each Fixed Period commencing on or before such Deposit Date, plus (y) during the Term Period for any Group, the Excess Interest accrued through such Deposit Date in respect of all Cash Secured Advances, in each case to the extent the same has not been previously so allocated;
(iii) deposit, out of the remainder of such Collections, to the Cure Account an amount sufficient to make the Facility Principal (less an amount equal to the Cure Funds then in the Cure Account) equal the Borrowing Base; and
(iv) deposit to the Borrower's Account the remainder of such Collections; provided, however, that the portion of the amounts allocable to the Trustee's expenses and held in the Trustee's Account shall only be in an amount equal to the unpaid expenses and disbursements owed or reimbursable under the Transaction Documents actually incurred by the Trustee (as certified to the Collection Agent in writing by the Trustee) during the Fixed Period ending on the last day of the most recent Month or remaining unpaid with respect to any prior Fixed Period. The Daily Report delivered by the Collection Agent to the Trustee on the first day of each Fixed Period shall set forth the Yield/Fee Amount for such Fixed Period and during the Term Period for any Group, the estimated Excess Interest for such Fixed Period.
(c) On each Deposit Date during the Amortization Period, the Collection Agent shall instruct the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at that time and in the following order:
(i) [Intentionally Omitted]
(ii) set aside and hold in the Trustee's Account, in trust (for the Beneficiaries and shallthe Collection Agent, at the request all of the Administrator (with the consent or at the direction of a Simple Majority relevant Collections until payment in full of the PurchasersObligations; and
(iii) deposit to the Borrower's Account the remainder of such Collections.
(d) On any Business Day during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Borrower may instruct the Collection Agent to direct the Trustee (as set forth in the Daily Report) to hold in the Trustee's Account all or a portion of the Collections otherwise to be deposited into the Borrower's Account pursuant to Section 2.04(a)(iii).
(e) On any Business Day during the Revolving Period, segregate the Borrower may instruct the Trustee by an officer's certificate delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall transfer to the Borrower's Account Cure Funds, if any, held in a separate account approved the Cure Account; provided that the officer's certificate delivered by the Administrator if, Seller to the Trustee at the time of such requestrequest shall state that, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out after taking account of such Collectionsrequested withdrawal, first, the Borrowing Base on such day is equal to or greater than the Facility Principal (less an amount equal to the Aggregate Discount accrued through Cure Funds then in the Cure Account) and shall set forth the calculation supporting such day for each Portion of Investment and not previously set asidestatement. Further, second, an amount equal upon at least two Business Days' prior notice to the fees Investor Agents and the Trustee, the Borrower may, on any Business Day during the Revolving Period (but, in no event more than once in any calendar week after taking into consideration any payment made pursuant to the first clause of Section 2.04A(a)(iv)), instruct the Trustee by an officer's certificate delivered to the Trustee by 12:00 noon (New York City time) to distribute Cure Funds in the Cure Account, and the Trustee shall transfer from the Cure Account to the Investor Agent's Accounts for the ratable payment of the Facility Principal to the relevant Investors and Banks, the amount set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablescertificate.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(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 or foreclosed goods or services, or any revision, cancellation, allowance, discount Participated Receivable becomes (in whole 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 Obligorin part) a Diluted Receivable, the Seller Borrower shall be deemed to have received on such day a Collection of such Pool Receivable or Participated Receivable in the amount of such reduction or adjustment and, if Diluted Receivable and the amount of such reduction or adjustment (x) causes the Purchased Interest to exceed 100%deemed Collection shall be allocated in accordance with Section 2.04(a), (yb) 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 continuingc), 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 adjustmentapplicable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (m) of Exhibit III is not no longer true with respect to any Pool Receivable or any Participated Receivable, the Seller Borrower shall be deemed to have received on such date, day a Collection of such Pool Receivable or Participated Receivable in full, 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 shall be allocated in accordance with this Section 1.4(d)(ii2.04(a), the Administrator’s and each other Purchaser’s rights in such Receivable shall automatically be conveyed to the Seller(b) or (c), without representation or warranty, but free and clear of all liens, security interests, charges and encumbrances created by or through the Administrator or any Purchaseras applicable;
(iii) except as provided in clause subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by Applicable Law applicable law or the relevant Contract, all Collections received from an Obligor of any Receivables or any Participated Receivable shall be applied to the Receivables or Participated Receivable of such Obligor in the order of the age of such ReceivablesReceivables or Participated Receivable, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific ReceivablesReceivables or Participated Receivable; and
(iv) if and to the extent the Administrator, any Purchaser Program Agent or any Purchaser of the Investor Agents, the Investors or the 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 such Person but rather to have been retained by the Seller Borrower and, accordingly, the Program Agent or such Person Investor Agent, the Investors or the Banks, as the case may be, 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.
(fg) If at To the extent that the amounts deposited to the Trustee's Account with respect to any time Fixed Period are insufficient to pay all the Seller shall wish accrued but unpaid Yield, Fees, Excess Interest, Trustee's Fee, Trustee's expenses and (if payable to cause the reduction a Collection Agent other than an Originator or one of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment)its Affiliates) Collection Agent Fee, the Seller Borrower shall be obligated to pay to the Investor Agents and/or Program Agent, as the case may do so as follows:
(i) be, on the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount last day of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafterFixed Period, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement DateInvestors, the Banks, the Investor Agents and the Aggregate Investment Program Agent and the Trustee (together with and the Investment Collection Agent, if applicable), an amount equal to the balance of any related Purchaser) shall be deemed reduced in the such accrued and unpaid amounts by deposit of such amount to be paid the Trustee's Account. The Trustee shall distribute such funds as set forth in Section 2.04A(a) or (b), as applicable.
(h) Within one Business Day after the end of each Fixed Period in respect of which Yield is computed by reference to the Administrator (for Investor Rate, each Investor Agent shall furnish the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) Borrower and the Collection Agent with an invoice setting forth the amount of any the accrued and unpaid Yield and Fees for such reduction shall be not less than $500,000 Fixed Period with respect to the unpaid Advances held by the Investors and the Banks in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respInvestor Agent's Group.
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections), first, an ----- amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees ------ set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, ----- to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject Subject to Section 1.4(f), if such day is not a Termination ------------- Day, then, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such Collections and such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, will be automatically reinvested in Pool additional 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 shall not exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and -------- held in trust on any Termination Day of the type described in clause (a) of the definition of “"Termination Day” (or any day following the provision of an Exiting Notice) " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the ---------- Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or ---------- waiver of conditions or revocation of such Exiting Noticeconditions; 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 and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Purchase Agreement (Imco Recycling Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), 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 Day (or any a day following on which the provision Commitment of an Exiting NoticePurchaser terminates), set aside, segregate aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date day on which the Commitment of the provision of an such Exiting Notice Purchaser terminates, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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 on which the provision Commitment of an such Exiting NoticePurchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple the Majority of the Purchasers 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 by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), deposit on each Settlement Date into the account from time to time specified by the Administrator(for any Portion of Capital), Collections held for the benefit of the Purchasers each Purchaser pursuant to Sections 1.4(b1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if WESCO ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO ▇▇▇▇▇ (or such Affiliate) that such right is revoked, WESCO ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentPeriod, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related such Yield PeriodPeriod or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to (based on the Discount and Fees accrued during such Yield Period 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 Investment Capital maintained by the Purchasers within such PurchasersPurchaser 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 feesFees, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, first if WESCO ▇▇▇▇▇ or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according to Investment (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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to (based on the aggregate of the Investment Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group 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 Investment Capital, (or, 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, second and third and fourth clauses of this Section 1.4(d)(iiclause (ii) to the Purchasers within its Purchaser Group ratably according (based on Discount and Fees and Capital, respectively), fourth, to Investment or, in the case LC Collateral Account for the benefit of the third clause LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of this Section 1.4(d)(ii), fees (not including cash collateral held in such LC Collateral Account equals 100% of the Servicing Fee)LC Participation Amount, fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO ▇▇▇▇▇ or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, 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 Groupthe Purchaser’s Ratable Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital (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 each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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. 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, 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 andand shall, if subject to Section 1.4(e)(v), immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4(b);
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, 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 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 respect thereof 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 and their assigns and for application pursuant to Section 1.6(a1.4(b) 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(Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 (iSections 1.4(e)(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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller shall wish wishes to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two (2) Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $25,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall not be not less than $500,000 in 100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless sum of the Aggregate Investment at Capital and the time of such reduction is less than $500,000, in which case Adjusted LC Participation Amount after giving effect to such reduction shall not be in less than the amount required to reduce the Aggregate Investment to zero)Minimum Usage Amount; and
(B) with resprespect to any Port
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kelly Services Inc)
Settlement Procedures. (a) The collection So long as the Administrative Agent has not taken dominion of the Pool Receivables shall be administered by Collateral 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested 1750355297 21689858 by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and/or controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of such requestpayments set forth below, there exists an Unmatured Termination Event all Collections on Pool Receivables that are actually received by the Servicer or a Termination Event the Borrower or received in any Lock-Box, Collection Account or Collateral Account; provided, however, that (A) if the failure Administrative Agent has not taken dominion of the Collateral Accounts, so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (x) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Second Tier Sale and Contribution Agreement and (y) any accrued and unpaid Servicing Fees owing to Aveanna (each such release, a “Release”) and (B) if the Administrative Agent has taken dominion of the Collateral Accounts, any such Release shall be made only in accordance with Section 9.03(c). On each Settlement Date, so segregate reasonably could be expected to cause a Material Adverse Effectlong as the Administrative Agent has not taken dominion of the Collections Accounts, the Servicer (or, following its assumption of control of the Collateral Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that if the Administrative Agent has taken dominion of the Collateral Accounts, then on the Settlement Date, the Administrative Agent will direct a portion of such Collections that, together sufficient to make all payments due by the Borrower on such Settlement Date in accordance with the below priorities for payment: first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Accrual Period to the extent not previously paid (including from proceeds of any Release), plus, if applicable, the amount of Servicing Fees payable for any prior Accrual Period to the extent such amount has not been paid to the Servicer; second, to each Lender and other Collections Credit Party (ratably, based on the amount then due and owing to such Persons), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Accrual Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Accrual Period to the extent such amount has not been distributed to such Lender or Credit Party; third, as set aside pursuant forth in clause (A), (B) or (C) below, as applicable: prior to this paragraphthe occurrence of the Termination Date, shall to the extent that a Borrowing Base Deficit exists on such date, to the Lenders (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the payment of a portion of the outstanding Aggregate Principal at such time, in an aggregate amount equal to the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%zero ($0); provided, further, that if on and after the Facility occurrence of the 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 1.10Date, to extend its each Lender (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ratably, based on the aggregate outstanding Principal of each Lender at such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administratortime) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Principal of each Purchaser Group’s Ratable Share such Lender at such time; or 1750355297 21689858 prior to the occurrence of accrued Servicing Fees so set asidethe Termination Date, and
(ii) if such distribution occurs on a Termination Day or on a day when at the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not election of the ServicerBorrower and in accordance with Section 2.02(d), to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit or any portion of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit outstanding Principal of the relevant Purchasers within Lenders at such Purchaser Agent’s Purchaser Group) ratably according to time (ratably, based on the fees accrued (other than Servicing Fees) in payment in full aggregate outstanding Principal of all each Lender at such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, time); fourth, to the Administrator Credit Parties, the Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for distribution to each Purchaser Agent ratably according the payment of all other Borrower Obligations then due and owing by the Borrower to the aggregate of Credit Parties, the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for Affected Persons and the benefit of Borrower Indemnified Parties; and fifth, the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (orbalance, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in fullany, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller Borrower 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 All payments or distributions to be made by the Administrator pursuant Servicer, the Borrower and any other Person to Sections 1.4(d) the Lenders (or their respective related Affected Persons and 1.4(fthe Borrower Indemnified Parties), including shall be paid or distributed to the applicable account of each Purchaser Agent party to which such amounts are owed. If and to the extent the Administrative Agent, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for which amounts should any reason to pay over to any Person (including any Obligor or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received on its behalf hereunder, such amount shall be distributed.
(e) deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, such Credit Party, such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount. For the purposes of this Section 1.4:
(i) 4.01: 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, counterclaim or dispute between the Borrower or any Affiliate of the Borrower, an Originator or any Affiliate of an Originator, or the Servicer or any Affiliate of the Servicer, 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 Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, to the extent that the effect of such reduction or adjustment is to cause a Borrowing Base Deficit or if such reduction or adjustment (x) causes the Purchased Interest to exceed 100%, (y) occurs on or after the occurrence of the Facility Termination Date or Date, shall within two (z2) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall Business Days pay an amount equal to (x) if such reduction or adjustment occurs prior to the Termination Date, the lesser of (A) the sum of all deemed Collections with respect to such reduction or adjustment and (B) an amount necessary to eliminate such Borrowing Base Deficit and (y) if such breach occurs on or after the Termination Date, the sum of all deemed Collections in respect thereof to a Lock-Box Collateral Account (other than an Exception Account) (or as otherwise directed by the Administrator Administrative Agent at such time) for the benefit of the Purchasers Credit Parties for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment;
(ii) 4.01(a); if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III 7.01 is not true with respect to any Pool Receivable, the Seller Borrower shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and to the extent that the effect of such breach is to cause a Borrowing Base Deficit or if such breach occurs after the Termination Date, shall within two (2) Business 1750355297 21689858 Days immediately pay the amount equal to (x) causes if such breach occurs prior to the Purchased Interest Termination Date, the lesser of (A) the sum of all deemed Collections with respect to exceed 100%, such breach and (B) an amount necessary to eliminate such Borrowing Base Deficit and (y) if such breach occurs on or 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 continuingDate, the Seller shall pay the amount sum of all such deemed Collection Collections with respect to such breach to a Lock-Box Collateral Account (other than an Exception Account) (or as otherwise directed by the Administrator Administrative Agent at such time) for the benefit of the Purchasers Credit Parties for application pursuant to Section 1.6(a4.01(a) within one Business Day of such breach(Collections deemed to have been received pursuant to Sections 4.01(d)(i) and 4.01(d)(ii) are hereinafter sometimes referred to as “Deemed Collections”); 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 clauses (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) and if and to the extent the AdministratorAdministrative Agent, any Purchaser Agent Credit Party, any Affected Person or any Purchaser Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller Borrower and, accordingly, 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Financing Agreement (Aveanna Healthcare 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, after the occurrence of a Termination Event or Unmatured Termination Event at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser GroupIssuer, 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 Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser GroupIssuer’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer’s Share of such Collections. , Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Issuer (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such PurchaserIssuer’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 Share 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))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” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Administrator), deposit on each Settlement Date into (or solely with respect to Collections held for the account from time Issuer pursuant to time specified clause (f)(iii) such other date approved by the AdministratorAdministrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit of the Purchasers Issuer pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO ▇▇▇▇▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not both a Termination Day and a day upon which the Administrator has not notified WESCO ▇▇▇▇▇▇▇▇▇ (or such Affiliate) that such 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, WESCO ▇▇▇▇▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser GroupIssuer’s Ratable Share of the Servicing FeeFee in payment in full of the Issuer’s Share of accrued servicing fees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable Purchaser Agent Administrator will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described Administration Account pursuant to clause (and at the times set forth) in Section 1.4(cc), 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 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) Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser GroupIssuer’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Issuer in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupCapital, third, second to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) Issuer in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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, third and fourth clauses of this Section 1.4(d)(ii) third, to the Purchasers within its Purchaser Group ratably according to Investment orServicer in payment in full of all accrued Servicing Fees, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifthand fourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital 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 Issuer, the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or 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 Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Groupthe Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional and/or remaining 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 set off or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer 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 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 (mn) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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, any Purchaser Agent Administrator or any Purchaser 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 such Person the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, such Person 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 Aggregate Investment the Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent Administrator and the Servicer written notice in the form of Annex C (A) at least two Business Days’ prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment Capital less than or equal to $10,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of Capital greater than $10,000,000 in each case such notice to 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 benefit of each Purchaser ratably according to its InvestmentIssuer, for payment to the Administrator on (for the account of such Purchaser1) on the next Settlement DateDate immediately following the current Settlement Period or (2) such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital 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 (Aa) the amount of any such reduction shall be not less than $500,000 in 1,000,000 and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless entire Capital of the Aggregate Investment at the time of such reduction is less than $500,000, in which case Purchased Interest after giving effect to such reduction shall be not less than $20,000,000 (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 amount required to reduce the Aggregate Investment to zero); and
(B) with respsame Settlement Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Carpenter Technology Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Servicer, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit:
(i) with respect to each Receivable Interest, set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Effectbut not physically segregate) for the benefit of each Purchaser GroupBanks that hold such Receivable Interest, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount Yield, Fees and Servicer Fee accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to Banks on a pro rata basis 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 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%; 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) below2.04(b)(i));
(iii) if such day is a Termination Liquidation Day for (x) any one or any day following the provision of an Exiting Notice)more (but not all) Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser Group Banks, the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share percentage of such Collections based represented by such Receivable Interests, or (y) all of the Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) all of the remaining Collections received by the Servicer on its Investment; provided, that solely for such date (but not in excess of the purpose of determining such Purchaser’s ratable share Capital of such Collections, such Purchaser’s Investment shall be deemed to remain constant from Receivable Interests and any other amounts payable by 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)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” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II 3.02 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)Agent, such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period[Intentionally Omitted].
(d) The Servicer shall distribute deposit into the Agent’s Account, (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 described (and at the times set forthother than Capital) in that relate to such Receivable Interest pursuant to Section 1.4(c2.04(b), (ii) on each Settlement Date (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 Banks pursuant to clause (iii) of Section 2.04(b); provided, however, that the aggregate amount deposited in the Agent’s Account pursuant to this clause (ii) with respect to any Seller Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the 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 are held for the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the preceding clause (ii) of this Section 2.04(d), all such remaining Collections..
(e) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Administrator for distribution to each Purchaser Agent ratably according Banks and to the Discount Agent in ratable payment in full of all accrued during such Yield Period (for and Fees and then to the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) Servicer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such PurchasersServicer Fee; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Banks and to the Agent in ratable payment in full of all accrued Yield and Fees, second to the Banks ratably in reduction to zero of all Capital, third to the Banks or the Agent in payment of any other amounts owed by the Seller hereunder or under any other Transaction Document, and fourth to the Servicer in payment in full of all accrued Servicing Fees, second, to Servicer Fee. After 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 Capital, Yield, Fees and the Servicer Fee with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased InterestReceivable 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 each Purchaser Groupany indemnity provided by the Agent 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. 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.
(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, 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 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 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 adjustmentDiluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (m) of Exhibit III is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by Applicable Law 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 in writing its payment for application to specific Receivables; and;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser the 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 such Person but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(fg) If at any time On the Facility Termination Date, the Seller shall wish pay to cause the reduction of Aggregate Investment (but not to commence Agent for its account and the liquidation, or reduction to zero, account of the entire Aggregate Investment), Banks and the Servicer the Termination Amount.
(h) All amounts payable by the Seller may do so as follows:or the Servicer under this Agreement to the Agent for its own account or for the account of the Banks shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Banks under this Agreement shall be payable in Dollars.
(i) the Seller shall give the Administrator, each Purchaser Agent All payments in respect of Yield and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment Capital (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaserx) shall be deemed reduced in the amount apportioned among all Receivable Interests to be paid to the Administrator which such payments relate and (for the account of such Purchasery) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 made to each Bank on a pro rata basis in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of accordance with such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respBank’s Percentage.
Appears in 1 contract
Sources: Receivables Purchase Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (or, if so requested by the Administrative Agent, solely if an Event of Termination or a Seller Event of Bankruptcy has occurred and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)is continuing, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of such requestpayments set forth below, there exists an Unmatured Termination Event all Collections on Pool Receivables that are received by the Servicer or the Seller or received in any Mail-Box or a Termination Event 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 if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with received on Sold Receivables in exchange for the other Collections set aside pursuant to this paragraph, shall equal the Seller designating an equivalent amount necessary to reduce the Purchased Interest to 100%; provided, further, that if the Facility Termination Date has been extended (based on aggregate Unpaid Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 1.10 2.01(e), which new Sold Receivables will be automatically and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) immediately sold by the Seller to the Administrator, Administrative Agent (for the Seller and ratable benefit of the Servicer of such Purchaser’s refusal, Purchasers) pursuant to Section 1.102.01(b) upon such release (each such release of Collections described in clauses (A) and (B) above, to extend a “Release”). On each Settlement Date, the Servicer (or, following its (or its Committed Purchaser’sassumption of control of any Collection Account, the Administrative Agent) 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the distribute Collections (or on all Pool Receivables in the case following order of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as followspriority:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)first, to the Servicer’s own account (payable in arrears on each Settlement Date) in Servicer for the payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Yield Period to the Servicer (if other than WESCO or an Affiliate thereof) have extent such amount has not been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, distributed to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) second, to the Administrative Agent for distribution to each Purchaser and other Purchaser Party (ratably, based on the proposed date of commencement 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 reduction and on each day thereafterpayments), the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investmentplus, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Dateif applicable, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 Yield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time respect of such reduction is less than $500,000, in which case payments) payable for any prior Yield Period to the extent such reduction shall be in the amount required has not been distributed to reduce the Aggregate Investment to zero); andsuch Purchaser or Purchaser Party;
(Biii) with respthird, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate InvestmentCapital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.12, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested 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;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 Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the Purchasers the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections based on its InvestmentCollections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on of Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment(determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date into (or, solely with respect to Collections held for the account from time Purchasers pursuant to time specified Section 1.6(f)(iii), such other date approved by the AdministratorAdministrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit of the Purchasers pursuant to Sections 1.4(bSection 1.6(b)(i), (ii) and 1.4(for (iii) or 1.6(f); provided, that if WESCO Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Peabody (or such Affiliate) that such the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, WESCO Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i1.6(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share Servicing Fee in payment in full of the accrued Servicing FeeFees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer and the Administrator by e-electronic mail of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall distribute the amounts described (and at the times set forth) in Section 1.4(c), cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and Day, 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c)) above, to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Day, 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, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Servicing Discount and Fees, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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); it being understood that each Purchaser Agent shall distribute , third, to the amounts described 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 second, third and fourth clauses of this Section 1.4(d)(iiLC Collateral Accounts (other than amounts representing LC Fee Expectation) to equal the Purchasers within its Purchaser Group ratably according to Investment 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 case of the third clause of this Section 1.4(d)(iiLC Collateral Accounts), fees (not including fourth, to the Servicer in payment in full of all accrued Servicing Fee)Fees, fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) amounts owing under clauses first through fourth above have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Agents (for the benefit of such Purchaser Agent and the Purchasers within such in their respective Purchaser Group) Groups), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to after the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full occurrence of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide account in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedsuch 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 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 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 Interest Assets Coverage Percentage to exceed 100%, % or (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 continuingDate, 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 and their assigns and for application pursuant to Section 1.6(a) 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in fullfull and, and if such breach (x) causes the Purchased Interest 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 or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuingDate, the Seller shall pay the amount of any and all such deemed Collection amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) 1.6 within one Business Day of such breach; provided thatand, upon payment receipt of cash payments in full by 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 in accordance with this Section 1.4(d)(iiand Related Security, shall be extinguished); provided, the Administrator’s and each other Purchaser’s rights in that any such Receivable reconveyance or release shall automatically be conveyed to the Seller, without representation or warranty, but free and clear of all liens, security interests, charges charges, and encumbrances created by or through the Administrator Administrator, any Purchaser Agent or any Purchaser;
(iii) except as provided in clause (i) or (ii)) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor (or Eligible Supporting Letter of Credit Provider or Credit Insurer, as applicable) of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Person Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Person Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment (Capital and such notice to 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 benefit of the Administrator (for the benefit of each Purchaser ratably according to its InvestmentPurchaser), for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respby depo
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 (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administrator 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 EffectAgent) for the benefit of each Purchaser Group, Purchasers out of such CollectionsCollections attributable to the Purchased Interest, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser GroupPurchaser’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside;aside which will be paid over to the Servicer in accordance with and subject to Sections 1.4(c) and (d),
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Agent and the Purchasers, the remainder of such Collectionsthe Collections attributable to the Purchased Interest. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 Agent, for the benefit of itself and the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administrator ifAgent), 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the AdministratorAgent) for the benefit of each Purchaser Group Purchasers the entire remainder balance of the any and all 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))all Pool Assets; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (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)Agent, such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesAssets.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Agent), deposit on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to Sections 1.4(bthe proviso to clause (b)(ii) and 1.4(fclause (b)(iii), in each case, of this Section 1.4; provided, that if WESCO AAR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator Agent has not notified WESCO AAR (or such Affiliate) that such right is revoked, WESCO AAR (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described Administration Account pursuant to clause (and at the times set forth) in Section 1.4(cc), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the 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 payable pursuant to the Fee Letter (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesCapital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchasers in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupCapital, third, second to the Administrator for distribution to each Purchaser Agent (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) Purchasers, in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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, third and fourth clauses of this Section 1.4(d)(ii) third, to the Purchasers within its Purchaser Group ratably according to Investment orServicer in payment in full of all accrued Servicing Fees, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifthand fourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Purchasers, the Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder.
(iii) after the Capital, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Groupthe Purchasers, 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. 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, or the Servicer or any Affiliate of the Servicer 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 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 relating to any Pool Receivable set forth in Section 1(g) or (ml(g) of Exhibit III hereof is not true with respect to any Pool Receivabletrue, the Seller shall be deemed to have received on such date, day 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)) immediately 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, any Purchaser Agent or any Purchaser the 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 such Person the Agent or the Purchasers but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Purchasers, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), 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 two Business Days’ prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment Capital less than or equal to $10,000,000 and (B) at least five Business Days’ prior to the date of such reduction for any reduction of Capital greater than $10,000,000, in each case such notice to 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 benefit of each Purchaser ratably according to its InvestmentPurchasers, for payment to the Administrator (for the account of such Purchaser) Agent on the next Settlement DateDate immediately following the current Settlement Period or such other date approved by the Agent, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) Agent only when in fact finally so paid; ; provided, that:
that (A) the amount of any such reduction shall be not less than $500,000 and shall be an integral multiple of $100,000 in excess thereof, and the aggregate for all Purchaser Groups (unless entire Capital of the Aggregate Investment at the time of such reduction is less than $500,000, in which case Purchased Interest after giving effect to such reduction shall be not less than $15,000,000 and shall be in the amount required to reduce the Aggregate Investment to zero); and
an integral multiple of $100,000 and (B) with respthe 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 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate InvestmentCapital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.12, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested 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;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 Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the Purchasers the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections based on its InvestmentCollections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on of Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment(determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date into (or, solely with respect to Collections held for the account from time Purchasers pursuant to time specified Section 1.6(f)(iii), such other date approved by the AdministratorAdministrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit of the Purchasers pursuant to Sections 1.4(bSection 1.6(b)(i), (ii) and 1.4(for (iii) or 1.6(f); provided, that if WESCO Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Peabody (or such Affiliate) that such the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, WESCO Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i1.6(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share Servicing Fee in payment in full of the accrued Servicing FeeFees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer and the Administrator by e-electronic mail of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c)) above, to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest Assets Coverage Percentage exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Servicing Discount and Fees, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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); it being understood that each Purchaser Agent shall distribute , third, to the amounts described 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 second, third and fourth clauses of this Section 1.4(d)(iiLC Collateral Accounts (other than amounts representing LC Fee Expectation) to equal the Purchasers within its Purchaser Group ratably according to Investment aggregate outstanding amount of the Aggregate LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the Aggregate LC Participation Amount) and (y) if such day is a Termination Day or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the case of the third clause of this Section 1.4(d)(iiLC Collateral Accounts), fees (not including fourth, to the Servicer in payment in full of all accrued Servicing Fee)Fees, fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) amounts owing under clauses first through fourth above have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Agents (for the benefit of such Purchaser Agent and the Purchasers within such in their respective Purchaser Group) Groups), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to after the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full occurrence of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide account in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedsuch 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 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 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 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(gl(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if such breach (x) causes the Purchased Interest to exceed 100%, (y) occurs after the occurrence upon receipt of cash payments in full of the Facility Termination Date or amounts specified in this clause (zii) 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 in a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) for the benefit , all right, title and interest of the Purchasers for application pursuant Administrator, any Purchaser Agent or any Purchaser to Section 1.6(a) within one Business Day of such breach; provided that, upon payment in full by 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 in accordance with this Section 1.4(d)(iiand Related Security, shall be extinguished); provided, the Administrator’s and each other Purchaser’s rights in that any such Receivable reconveyance or release shall automatically be conveyed to the Seller, without representation or warranty, but free and clear of all liens, security interests, charges charges, and encumbrances created by or through the Administrator Administrator, any Purchaser Agent or any Purchaser;
(iii) except as provided in clause (i) or (ii)) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor (or Eligible Supporting Letter of Credit Provider) of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Person Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Person Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment (Capital and such notice to 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 benefit of the Administrator (for the benefit of each Purchaser ratably according to its InvestmentPurchaser), for payment to the Administrator (for by deposit into the account of such Purchaser) Administration Account on the next Settlement DateDate immediately following the current Settlement Period or such other date approved by the Administrator and the Majority Purchaser Agents, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) that the amount of any such reduction shall be not less than $500,000 300,000 and shall be an integral multiple of $100,000. Upon receipt by the Administrator in the aggregate for all Purchaser Groups (unless Administration Account of any amount paid in reduction of the Aggregate Investment Capital pursuant to sub-clause (iii) above, the Administrator shall cause such funds to be distributed to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment of each Purchaser’s outstanding Capital.
(g) In accordance with Section 2(l)(iv) of Exhibit IV, the Servicer will deliver an Interim Report to the Administrator once per week, provided, that following the occurrence of a Minimum Cash Liquidity Event or the occurrence and continuance of a Termination Event or Unmatured Termination Event, the Servicer will, at the time request of the Administrator, deliver an Interim Report to the Administrator on each Business Day. Upon receipt of such reduction is less than $500,000Interim Report, in which case the Administrator shall promptly review such reduction shall be in Interim Report to determine if such Interim Report constitutes a Qualifying Interim Report. In the amount required to reduce event that the Aggregate Investment to zero); and
(B) with respAdministrator reasonably determines that such Interim Report constitutes a Qualifying Interim Report, so long as no Termination Event
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit:
(i) with respect to each Receivable Interest, set aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administrator 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 Effectsegregate) for the benefit of each Purchaser GroupInvestors that hold such Receivable Interest, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Aggregate Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder Investors that hold such Receivable Interest the percentage of such Collections. Such remainder shallCollections represented by such Receivable Interest, to the extent representing a return on the Aggregate Investmentof Capital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time recomputation 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 Receivable 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) below2.03;
(iii) if such day is a Termination Liquidation Day (for any one or any day following the provision of an Exiting Notice)more Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser Group the entire remainder Investors that hold such Receivable Interests all of the remaining Collections (or but not in excess of the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share Capital 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)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” (or any day following the provision of an Exiting Notice) 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 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)Agent, such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shallCollection Agent shall deposit into the Agent's Account, in accordance with on the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administratorfor each Receivable Interest, Collections held for the benefit of the Purchasers pursuant Investors that relate to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Receivable Interest pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period2.04(b).
(d) The Servicer Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according Investors that hold the relevant Receivable Interest and to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) Agent in payment in full of all accrued Discount Yield and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Fees and then to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) Collection Agent in payment in full of the aggregate of each Purchaser Group’s Ratable 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, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Investors that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Servicing Yield and Fees, secondsecond to such Investors in reduction to zero of all Capital, third to such Investors or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Administrator for distribution to each Purchaser Collection 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 Collection Agent Fee. After the Capital, Yield, Fees and Collection Agent Fee with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Receivable Interest, and any other amounts payable by the Seller and to the Servicer to each Purchaser Group, Investors or the Administrator or any other Indemnified Party or Affected Person 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. 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 1.42.04:
(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, allowancecash discount, discount for quick payment or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Serviceran Originator, 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 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 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 contained in Section 1(g4.01(h) or (m) of Exhibit III is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 subsection (i) or (ii) of this Section 2.04(e), or as otherwise required by Applicable Law 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 in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser the Investors 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 such Person but rather to have been retained by the Seller and, accordingly, such Person the Agent or the Investors, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple the Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.10, 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 Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser Purchaser, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; , and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(v) Amounts set aside or distributed pursuant to this Section 1.4(b) shall be based on the Servicer’s best estimates; provided, however, that the Servicer shall be fully responsible and liable for any inaccuracies in such estimating and shall immediately correct any such inaccuracies upon discovery thereof.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit each such Purchaser with respect to such Purchaser’s Portion(s) of the Purchasers Investment pursuant to Sections 1.4(bclause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO Airgas or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Airgas (or such Affiliate) that such right is revoked, WESCO Airgas (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser GroupServicing Fee (less the Seller’s Ratable Share of the Servicing Feethereof). Within three Business Days of On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield PeriodPeriod then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution first, to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ), ratably according to the Discount accrued and unpaid for each Purchaser, in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Discount and feeson the Investment, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO Airgas or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing FeesFees owing to such Servicer, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ), ratably according to the fees accrued (other than Servicing Fees) in payment in full of and unpaid Discount for each Purchaser, all such accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment funded or 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 Purchasers within such Purchaser Agent’s Purchaser Group Group, third, to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ), ratably according to the aggregate of the Investment of each Purchaser, in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to accrued and unpaid Discount on the Investment orand the Investment, in the case respectively, of the third clause of this Section 1.4(d)(ii)each such Purchaser, fees (not including the Servicing Fee)fourth, [reserved], fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero[reserved], and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in fullsixth, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party or Affected Person within such Purchaser Agent’s Purchaser Group, ratably in accordance with the amounts due thereto, and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixthseventh, to the Servicer’s own account (if the Servicer is WESCO Airgas or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After With respect to both clauses (i) and (ii) above, after the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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, rebate, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 Sections 1(g), (n), (q) or (mv) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 clauses (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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency ProceedingEvent of Bankruptcy) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) except as provided below, the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment less than or equal to $30,000,000 in the form of Annex F and (B) at least five Business Days’ prior written notice thereof for any reduction of Aggregate Investment greater than $30,000,000 (in each case such notice to shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate with respect to any Investment maintained by such Purchaser, and and, the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall not be not less than $500,000 in 100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless the entire Aggregate Investment at the time of after giving effect to such reduction is shall not be less than $500,00050,000,000 and shall be in an integral of $1,000,000 in excess thereof;
(B) (w) if a Termination Event or Unmatured Termination Event exists and is continuing (or would exist and be continuing after giving effect thereto), in which case the amount of any such reduction shall be in the amount required applied to reduce the Investment of each Purchaser (ratably according to its Investment), (y) the amount of any such reduction shall not be less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000 for each Purchaser Group and (z) after giving effect to any such reduction, the entire Aggregate Investment shall not be less than $50,000,000 and shall be in an integral multiple of $1,000,000;
(C) with respect to zero)any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period; and
(BD) with resprespect to any Portion of Investment funded by Victory’s Purchaser Group such reduction shall occur either (i) upon 20 days prior written to the Victory Agent or (ii) on the maturity date of Victory’s Notes or other financing source funding such Portion of Investment.
Appears in 1 contract
Settlement Procedures. (a) The collection 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 and with respect to any Collection transferred to the Collection Account on such day pursuant to the last paragraph of Section 1.4(e), the Servicer shall:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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) Collection Account for the benefit of each Purchaser Groupthe Issuer, out of the percentage of such CollectionsCollections represented by the Purchased Interest, first, FIRST an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set asidetransferred, secondSECOND, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such dayday for the Purchased Interest and not previously transferred, and thirdTHIRD, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;transferred; and
(ii) subject to Section 1.4(fSECTION 1.4 (f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the percentage of such Collections. Such remainder shall, represented by the Purchased Interest, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 have calculated the Purchased Interest on such day, and if such Purchased Interest shall exceed 100% on such day, such Collections shall not reinvest, be remitted to the Seller but shall be set aside and hold held in trust the Collection Account for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Issuer in accordance with clause PARAGRAPH (iii) below;
(iii) if such day is a Termination Day (or any if such day following is a day on which the provision of an Exiting NoticePurchased Interest exceeds 100%), (A) set aside, segregate aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser Group the Issuer the entire remainder of the percentage of the Collections represented by the Purchased Interest (or such amount set forth in PARAGRAPH (ii) above); PROVIDED that so long as 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 Facility Termination Date has been paid in full; it being understood that not occurred if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account any amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be are so 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, and thereafter, the conditions set forth in Section SECTION 2 of Exhibit EXHIBIT II are satisfied or are 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-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, 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 hold in the Collection Account for the benefit of the Issuer 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 set aside on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or revocation are waived by the Administrator, such previously set aside amounts shall be distributed to the Seller on the day of such Exiting Noticesubsequent satisfaction or waiver of conditions; and
(iv) during the times when 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 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 of event the Servicing Fee accrued and unpaid through such day and Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses (including the Servicing Fee to the extent such Servicing Fee has not already been paid) of the such Servicer for of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with shall deposit into the priorities set forth in Section 1.4(dAdministration Account (or such other account designated by the Administrator), deposit on each Settlement Date into the account from time to time specified by the Administrator, Date:
(i) Collections held on deposit in the Collection Account for the benefit of the Purchasers Issuer pursuant to Sections 1.4(bSECTION 1.4(b)(i) in respect of accrued Discount and accrued and unpaid Fees;
(ii) Collections held on deposit in the Collection Account for the benefit of the Issuer pursuant to SECTION 1.4(f); provided, that if WESCO or an Affiliate thereof is and
(iii) the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO lesser of (or such Affiliatex) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of Collections then held on deposit in the Discount Collection Account for the benefit of the Issuer pursuant to SECTION 1.4(b)(iii) and (y) the aggregate amount of Capital on such date. The Servicer shall deposit to its own account from Collections held on deposit in the Collection Account pursuant to SECTION 1.4(b)(i) in respect of the accrued with respect Servicing Fee, an amount equal to such Portion of Investment during the related Yield Periodaccrued Servicing Fee.
(d) The Servicer shall distribute Upon receipt of funds deposited into the amounts described Administration Account pursuant to CLAUSE (and at the times set forth) in Section 1.4(cc), 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 FIRST to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount Capital and feesaccrued and unpaid Fees, and secondSECOND, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, if WESCO or an Affiliate thereof is not the Servicer, FIRST to the Servicer’s own account Issuer in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupCapital and accrued and unpaid Fees, third, SECOND to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) Issuer in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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 , THIRD, if Keebler or an Affiliate thereof is not the amounts described in the secondServicer, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orServicer in payment in full of all accrued Servicing Fees, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifthFOURTH, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO Keebler or an Affiliate thereof) have been paid in full, to the Issuer, the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or under this Agreement and, FIFTH, unless such amount has been retained by the Servicer hereunder, and sixthpursuant to CLAUSE (c), to the Servicer’s own account Servicer (if the Servicer is WESCO Keebler or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Issuer's Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, Servicing Fees, and any other amounts payable by the Seller and the Servicer to each Purchaser Groupthe 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. 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 SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by any Originator, Hollow Tree, the Servicer, the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between any Originator, Hollow Tree, the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer 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 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 (m) of Exhibit EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, and if such breach full (x) causes the Purchased Interest Collections deemed 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 have been received pursuant to Section 1.6(aCLAUSE (i) within one Business Day and (ii) of such breach; provided that, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(iiparagraph (e) are hereinafter sometimes referred to as "Deemed Collections"), 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, any Purchaser Agent Administrator or any Purchaser 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 Proceedingpursuant to an Event of Bankruptcy) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, such Person 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. On or before the last day of each Reporting Period that contains one or more days on which Seller is deemed to have received a Collection pursuant to this SECTION 1.4(e), Seller shall transfer an amount equal to the aggregate amount of such Deemed Collections to the Collection Account and the Servicer shall distribute such transferred amount in the manner set forth in SECTION 1.4(c), as if such transferred amount actually had been received by Seller or Servicer on the date of such transfer from the Obligors of such Pool Receivables and as if such transferred amount actually had been deposited into a Lockbox Account on the date of such transfer.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital of the Purchased Interest (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent Administrator and the Servicer at least two Business Days’ ' prior written notice thereof for any reduction of Aggregate Investment (such notice to include including the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust the Collection Account for the benefit of each Purchaser ratably according to its Investmentthe Issuer, for payment to the Administrator (for the account of such Purchaser) on the next Settlement DateDate immediately following the current Settlement Period, and the Aggregate Investment (together with Capital of the Investment of any related Purchaser) Purchased Interest shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in 5,000,000 and shall be an integral multiple of $1,000,000, and the aggregate for all Purchaser Groups (unless entire Capital of the Aggregate Investment at the time of such reduction is less than $500,000, in which case Purchased Interest after giving effect to such reduction shall be not less than $50,000,000 and shall be in the amount required to reduce the Aggregate Investment to zero)an integral multiple of $1,000,000; and
(B) with respthe Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or Administrator, at the direction of any time while a Simple Majority of the Purchasers)Termination Event has occurred and is continuing, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the SellerSeller (or the Originators on behalf of the Seller to satisfy obligations of the Seller under the Purchase and Sale Agreement), ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, be automatically reinvested, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested 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 Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”, which, for the avoidance of doubt shall not have any effect until the then Scheduled Commitment Termination Date) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.10then Scheduled Commitment Termination Date, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable, (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group ), the entire remainder of the such Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment Capital shall be recalculated taking into account amounts received by such Purchaser Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment 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 an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables, plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account, no later than noon (New York time) on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for the benefit Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO ▇▇▇▇▇ Corning Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO ▇▇▇▇▇ Corning Sales (or such Affiliate) that such right is revoked, WESCO ▇▇▇▇▇ Corning Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three On or prior to the Business Days of the last day of Day immediately preceding each Yield Period with respect to any Portion of InvestmentSettlement Date, the applicable each Purchaser Agent will notify the Servicer and the Administrator no later than noon (New York time) telephonically, by e-electronic mail or by facsimile of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield PeriodSettlement Period or portion thereof and thereafter no later than 5:00 p.m. (New York time) on such day the Administrator will notify the Servicer telephonically, by electronic mail or by facsimile of such amounts.
(d) The Servicer Administrator shall distribute the amounts described in clause (and at c) above promptly following receipt of such funds deposited into the times set forthAdministration Account (but no later than 5:00 p.m. (New York time)) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount and Fees accrued during such Yield 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 Investment Capital maintained by such PurchasersPurchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Discount and feesFees, 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’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment all Purchasers at such time) (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser GroupGroup and all accrued Fees, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate Actual Share of the Investment Exposure of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) in payment in full an amount, for each Purchaser Group, equal to such Purchaser Group’s Actual Share of each Purchaser’s Investment the Exposure (or, if such day is not a Termination Day, such Purchaser Group’s Actual Share of the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); provided, that each Purchaser Agent shall apply any amount distributed to it pursuant to this third clause in the following order of priority: (x) first, in payment of the aggregate Capital of each Purchaser in such Purchaser Agent’s Purchaser Group and (y) second, to the LC Collateral Account for the benefit of any LC Bank in such Purchaser Agent’s Purchaser Group, to cash collateralize such LC Bank’s LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the Aggregate LC Participation Amount; it being understood that each Purchaser Agent shall distribute the amounts described in the secondfirst, second and third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its such Purchaser Agent’s Purchaser Group ratably according to Investment Discount, Fees and Capital, respectively (or, with respect to any Tranched Capital Purchaser in the case of the third clause of this Section 1.4(d)(iisuch Purchaser Agent’s Purchaser Group, in accordance with Exhibit VI), fees (not including the Servicing Fee), fifthand fourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 (if other than WESCO or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the Administrator for distribution ratably amounts payable to each Purchaser Agent in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within in such Purchaser Agent’s Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or 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 Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group 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 each 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. 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, 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%, % or (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 continuingDate, 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 and their assigns and for application pursuant to Section 1.6(a1.4 within two (2) within one Business Day Days of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gSections l(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in fullfull and, 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 or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuingDate, the Seller shall pay the amount of any and all such deemed Collection amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a1.4 within two (2) within one Business Day Days of knowledge 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction in substantially the form of Aggregate Investment Annex C (each, a “Paydown Notice”) no later than noon (New York time) on the Business Day prior to the date of such notice to include reduction, such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to the Administrator in the Administration Account (for the benefit of the Purchasers), no later than noon (New York time), in immediately available funds, an amount equal to the desired amount of such reduction; and, and thereafter the Administrator shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) such Purchaser Agent’s ratable amount, based on such Purchaser Agent’s Purchasers’ portion of the Aggregate Capital reduced thereby;
(iii) in the case of clause (ii)(A) above, the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser ratably according to its Investment, based on their respective Portions of Capital funded thereby) for payment to the Administrator (for the account benefit of such each Purchaser) by deposit in the Administration Account on any Business Day designated by the next Settlement DateServicer in consultation with the Seller upon two Business Days’ notice thereof by the Servicer to the Administrator and each Purchaser Agent, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for on behalf of the account of such PurchaserPurchasers) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respi
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 Collection Agent shall set aside and hold in trust for the exclusive benefit of the Purchasers Transferor and the Secured Parties (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day (or any day following the provision of an Exiting NoticeSection 4.03), set aside, segregate and hold all Collections on Pool Receivables that are received by the Collection Agent or the Transferor (including receipt of Deemed Collections or cash payment to effect a Repurchase) or received in trust (and shall, at the request of the Administrator (any Lock-Box or Lock-Box Account for application in accordance with the consent or at the direction priority of a Simple Majority of the Purchasers), segregate payments set forth in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)Section 3.01(b); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%for so long as no Collection Agent Ratings Event, first to the Administrator for distribution to each Purchaser Collection Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Default or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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, any such Collections may be commingled by the Seller Collection Agent with funds of the Collection Agent and its Affiliates prior to the applicable Settlement Date, solely for the purpose of investing in short-term cash management investments; provided, however, that no such commingling or any loss or gain attributable to any such investment shall pay derogate from the Collection Agent’s obligations hereunder to distribute all Collections, or an amount equal thereto, in accordance with the priority of payments set forth in Section 3.01(b) and (ii) the Collection Agent may from time to time release to the Transferor from Collections any amounts permitted to be released under Section 5.03 and applied by the Transferor as (A) a cash payment towards the purchase price for any Receivables acquired by the Transferor under the Purchase Agreement (each such release, a "Reinvestment") or (B) repayments or extensions of credit in accordance with the Cash Pooling and Management Agreement (each, a "Cash Pooling Transfer").
(b) On each Settlement Date, the Collection Agent (or, following its assumption of exclusive control of the Lock-Box Accounts, the Administrative Agent) shall distribute such Collections in the following order of priority:
(i) first, to each Lock-Box Bank, the amount of any fees, costs or expenses permitted to be debited or withdrawn by such Lock-Box Bank from a Lock-Box Account pursuant to the terms of the applicable Lock-Box Agreement, to the extent such fees, costs or expenses have not already been debited or withdrawn;
(ii) second, to the Collection Agent for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period, plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Collection Agent;
(iii) third, to each applicable Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Fees due to such Credit Party for the immediately preceding Interest Period, plus, if applicable, the amount of any such Fees payable for any prior Interest Period to the extent such amount has not been distributed to such Credit Party;
(iv) fourth, to each applicable Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest due to such Credit Party for the immediately preceding Interest Period, plus, if applicable, the amount of any such Interest payable for any prior Interest Period to the extent such amount has not been distributed to such Class Investor or Credit Party;
(v) fifth, if any Borrowing Base Deficit exists, to each Class Investor (ratably, based on the aggregate outstanding Capital of each Class Investor at such time), to repay the outstanding Capital of each Class Investor, an aggregate amount equal to the amount that, when applied in reduction of the Aggregate Capital, will cure such Borrowing Base Deficit;
(vi) sixth, on and after the Termination Date, to each Class Investor (ratably, based on the aggregate outstanding Capital of each Class Investor), to repay the outstanding Capital of each such Class Investor until paid in full;
(vii) seventh, to each Credit Party, each Affected Person and each Lock-Box Bank (ratably, based on the amounts due and owing at such time), all other Obligations then due and owing by the Transferor to such Person (including any amounts payable under Article XII or adjustment any Lock-Box Agreement);
(viii) eighth, prior to the Termination Date, at the election of the Transferor and in accordance with Section 2.04, to the payment of all or any portion of the outstanding Capital of the Class Investors at such time (ratably, based on the aggregate outstanding Capital of each Class Investor at such time); and
(ix) ninth, the remaining balance, if any, to the Transferor.
(c) All payments or distributions to be made by the Collection Agent, the Transferor and any other Person to the Administrative Agent or the Class Investors (or their respective related Affected Persons), shall be paid or distributed to the related Class Agent at its Class Agent's Account. Each Class Agent, upon its receipt in the applicable Class Agent's Account of any such payments or distributions, shall distribute such amounts to the applicable Class Investors and Affected Persons within its Class ratably; provided that if such Class Agent shall have received insufficient funds to pay all of the above amounts in full on any such date, such Class Agent shall pay such amounts to the applicable Class Investors and Affected Persons within its Class in accordance with the priority of payments set forth above, and with respect to any such category above for which there are insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to each such Person in such Class) among all such Persons in such Class entitled to payment thereof.
(d) If and to the extent the Administrative Agent, any Credit Party or any Affected Person shall be required for any reason to return to the Transferor or any underlying Obligor (including to any trustee, receiver, custodian or similar official thereof as a result of any Event of Bankruptcy with respect to the Transferor or such Obligor) any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Transferor and, accordingly, the Administrative Agent, such Credit Party or such Affected Person, as the case may be, shall have a claim (which claim may be contingent or subject to defenses) against the Transferor for such amount.
(e) If on any day the Seller is required to make a cash payment of Deemed Collections to the Transferor or effect a Repurchase under the Purchase Agreement, the Transferor shall deposit (or cause to be deposited) the amount of such Deemed Collections or the repurchase price for such Repurchase 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 Collections in accordance with this Section 1.4(d)(ii3.01(b), the Administrator’s and each other Purchaser’s rights in such Receivable . The Transferor shall automatically be conveyed to promptly enforce the Seller's obligations to pay Deemed Collections or, without representation or warrantyif requested by the Administrative Agent, but free and clear effect a Repurchase, in each case, in accordance with the terms of all liens, security interests, charges and encumbrances created by or through the Administrator or any Purchaser;Purchase Agreement.
(iiif) except as provided in clause (i) or (ii), or Except as otherwise required by Applicable Law or the relevant Contract, all Collections received from an a Pool Obligor in payment of any Pool Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Transfer and Administration Agreement (Tech Data Corp)
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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 Administrative Agent, for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and/or controlled by the time 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 requestdate, there exists an Unmatured Termination Event 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 Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) 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%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iiiB) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator Termination Date, to each Purchaser (with ratably, based on the consent or aggregate outstanding Capital of each Purchaser at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administratorsuch time) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Capital of such Purchaser at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the Seller and in accordance with Section 2.02(d), to the payment of all or any portion of the outstanding Capital of the Purchasers at such time (ratably, based on the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andat such time);
(iiiv) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator Secured Parties (ratably, based on the amount due and owing at such time), for distribution to each Purchaser Agent ratably according the payment of all other Seller Obligations then due and owing by the Seller to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group Secured Parties;
(for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Groupv) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Originators (for ratably, based on the benefit amount due and owing at such time), any payments of principal or interest then due under the Purchasers within such Purchaser GroupSubordinated Loans; and
(vi) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, the balance, if any, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants 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 agrees other Sold Assets, and second, to timely provide the Administrator with extent necessary in order to make all information necessary 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 Administrator to make Seller’s provision of the allocations to Seller Guaranty and the Purchaser Agents required Parties’ interests in the Sold Asset and the Seller Collateral.
(b) All payments or distributions to be made by the Administrator pursuant Servicer, the Seller and any other Person to Sections 1.4(d) and 1.4(fany Purchaser Party (or its respective related Secured Parties), including the applicable account of each shall be paid or distributed to such Purchaser Agent for which amounts should be distributedParty.
(ec) 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 thereof or (C) any setoff, counterclaim or dispute between any Seller, or the Servicer -Related Party or any Affiliate of the Servicerthereof, 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 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 adjustment andas 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 or adjustment (x) causes occurs prior to the Purchased Interest to exceed 100%, (y) occurs after the occurrence of the Facility Termination Date and no Event of Default or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event Potential Default has occurred and is continuing, the Seller shall pay an amount equal lesser of (I) the sum of all deemed Collections with respect to such reduction or adjustment and (II) an amount necessary to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator eliminate any Capital Coverage Amount Deficit that exists at such timetime and (y) for if such reduction occurs on or after the benefit Termination Date or at any time when an Event of Default or Potential Default has occurred and is continuing, the Purchasers for application sum of all deemed Collections with respect to such reduction (Collections deemed to have been received pursuant to this Section 1.6(a3.01(d)(i) within one Business Day of such reduction or adjustmentare 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 (m) of Exhibit III 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 date, 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 (x) causes occurs prior to the Purchased Interest to exceed 100%, (y) occurs after the occurrence of the Facility Termination Date and no Event of Default or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event Potential Default has occurred and is continuing, the Seller shall pay lesser of (I) the sum of all deemed Collections with respect to such breach and (II) an amount of such deemed Collection necessary to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator eliminate any Capital Coverage Amount Deficit that exists at such timetime and (y) for if such breach occurs on or after the benefit Termination Date or at any time when an Event of Default or Potential Default has occurred and is continuing, the Purchasers for application sum of all deemed Collections with respect to such breach (Collections deemed to have been received pursuant to Section 1.6(aSections 3.01(d)(i) 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)(iiand 3.01(d)(ii), the Administrator’s and each other Purchaser’s rights in such Receivable shall automatically be conveyed including any Dilution, are hereinafter sometimes referred 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 Purchaseras “Deemed Collections”);
(iii) except as provided in clause clauses (i) or (ii), ) above or as otherwise required by Applicable applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Administrative Agent or any Purchaser 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 such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
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 Collection Agent, in accordance with the terms of this Agreement. The Seller shall provide to the Servicer Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day or Provisional Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of for such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupPurchaser, out of the percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to such Purchaser's Yield and Pro Rata Share of the Aggregate Discount Collection Agent Fee, if any, accrued through such day for each Portion of Investment 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 each Purchaser Group Fee Letter accrued and unpaid through contrary, such dayamounts may, and thirdif the Seller is the Collection Agent, be comingled with the Seller's other funds prior to their payment to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set asidePurchasers;
(ii) subject to Section 1.4(f), if such day is not neither a Termination Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, remit to the Seller, ratably, reinvest on behalf of each such Purchaser Group, the remainder of such percentage of Collections. Such remainder shall, to the extent representing a return on the Aggregate Investmentof Capital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time recomputation 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 Receivable 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) below2.03;
(iii) if such day is a Termination Liquidation Day (or any day following the provision of an Exiting Notice)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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each such Purchaser Group the entire remainder of the Collections (or in the case such percentage of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCollections; 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 Provisional Liquidation 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 that is subsequently determined not to be 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 Liquidation Day thereupon 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 InvestmentCapital, 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 or waiver percentage of conditions or revocation Collections or, if the remainder of such Exiting NoticeCollections 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, if the Seller is the Collection Agent, be commingled with the Seller's other funds prior to their payment to the Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may, if the Seller is then the Collection Agent, be commingled with the Seller's other funds prior to their payment to the Purchasers; and
(ivvi) 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 in accordance with clause (ii) or the proviso to clause (iii) plus (y) and 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesabove.
(c) The Servicer shallCollection Agent shall deposit into an account designated by each Purchaser, on the first Business Day after each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with the priorities set forth in Section 1.4(d2.04(b), deposit on each Settlement Date into unless deposited earlier as provided in the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f)next succeeding sentence; provided, that however, if WESCO or an Affiliate thereof is Collections have been commingled with the ServicerSeller's other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, such day is not a Termination Day any deposits made pursuant to the preceding clause shall be made by the Seller from and to the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion extent of the Collections set aside pursuant with respect to a Receivable Interest owned by such Purchaser. If the Collection Agent is not the Seller, and if a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 1.4(b)(i2.04(b) that represents shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of each Purchaser Group’s Ratable Share of any other amounts then owed by the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect Seller to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute Purchaser hereunder. If the amounts described so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (and at the times set forth) whether or not such funds are sufficient to pay in Section 1.4(c), as follows:
(i) if 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 Administrator for distribution Collection Agent (if other than the Seller or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second 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 unpaid Yield, third to each Portion such Purchaser in reduction to zero of Investment maintained by the Aggregate Capital of 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 feesPurchaser, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant fourth to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) Purchaser in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter Capital and Servicing Fees Yield with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and to the Servicer to each Purchaser Group, 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. 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.
(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, cash discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicera Seller Subsidiary, 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 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 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 either (w) any of the representations or warranties contained in Section 1(gSections 4.01(h) or (m4.01(n) of Exhibit III 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), (y) the Seller, any Seller Subsidiary or the Collection Agent (if the Seller or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a manner which materially and adversely affects the collectibility of such Pool Receivable, or (z) any Pool Receivable denominated in a currency other than United States dollars is deemed uncollectible by any Purchaser as a result of the inability of the Obligor thereof to make any payment thereon due to restrictions imposed on the payment of the foreign currency in which such Pool Receivable is denominated outside of the country of such foreign currency, the Seller shall be deemed to have received on such date, day 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 subsection (i) or (ii) of this Section 2.04(d), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it on its behalf hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person 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 Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.10this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;.
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Noticea 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its InvestmentCapital; 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 Investment or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting 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 Investment 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 Investment 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 Investment 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 an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Administrator and a Simple Majority of the Purchasers Purchaser Agents (or in the case of an Exiting Noticea Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Exiting 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 Purchaser, as the case may be, and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Exiting Notice; 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into in the account from time to time specified by the Administrator, case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the benefit amount of Collections then held for the related Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of this Section 1.4; provided, that if WESCO Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Triumph (or such Affiliate) that such right is revoked, WESCO Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Day, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such 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 Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, 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’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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, first if WESCO Triumph or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to Investment 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 such accrued Discount with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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, third first and fourth second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment orDiscount and Capital, in the case of the third clause of this Section 1.4(d)(ii)respectively, fees (not including the Servicing Fee), fifthfourth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO Triumph or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts then due and payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed then due and payable thereto by the Seller or Servicer hereunderhereunder and, and sixthfifth, to the Servicer’s own account (if the Servicer is WESCO Triumph or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if and shall immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to this Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”), 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $20,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 1,000,000 or an integral multiple of $100,000 in the aggregate for all Purchaser Groups excess thereof (unless to be applied pro rata in accordance with the Aggregate Investment at Capital outstanding) and, on and after August 29, 2008, the time of such reduction is less than $500,000, in which case entire Aggregate Capital after giving effect to such reduction shall be in not less than $75,000,000 and the amount required to reduce the Aggregate Investment to zero)Purchased Interest shall not exceed 100%; and
(B) with resprespect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Triumph Group Inc /)
Settlement Procedures. 749303375 18569090
(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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrative Agent, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under any Intercompany Loan Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent for distribution to each Lender (ratably, based on the amount then due and owing to such Lender and any related Credit Parties), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other related Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such requestpayments), there plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (xA), (yB) or (zC) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists an Unmatured Termination Event or a Termination Event or if on such date, to the failure Administrative Agent for distribution to so segregate reasonably could be expected to cause a Material Adverse Effectthe Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iiiB) if such day is a Termination Day (or any day following on and after the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request occurrence of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shallDate, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Administrative Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to Lender (ratably, based on the Discount accrued during aggregate outstanding Capital of each Lender at such Yield Period (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 (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate outstanding Capital of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, andsuch Lender at such time; or
(iiC) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, prior to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 Date, 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 election 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, a Collection of such Pool Receivable in full, Borrower 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)(ii2.02(d), 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 Administrative Agent for distribution to the payment 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 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 portion of the age outstanding Capital of 749303375 18569090 Person such Receivables, starting with the oldest additional amount or amounts as will compensate such Receivable, unless Affected Person or such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required Affected Person’s holding company for any reason to pay over to an Obligor (such increase, reduction or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereofcharge.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Financing Agreement (Syneos Health, 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 Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer or an Originator (including pursuant to Section 1.8 of the Servicer:Purchase and Sale Agreement):
(i) set aside and hold in trust (and shalland, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 Effectsegregate) for the benefit of each Purchaser GroupIssuer, out of the percentage of such CollectionsCollections represented by the Purchased Interest, first, first an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, aside and second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day for the Purchased Interest and not previously set aside;; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the percentage of such Collections. Such remainder shall, represented by the Purchased Interest, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, of Capital; such Collections shall be automatically deemed 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 automatically recomputed 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) below1.3;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group Issuer the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date percentage of the provision of an Exiting Notice until Collections represented by the date such Purchaser’s Investment has been paid in fullPurchased Interest; 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, 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, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are 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-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Noticeconditions; 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 pursuant to clause paragraph (i), the proviso to clause (ii) above and clause (iii) plus (z) the Seller’s Share any other obligations of the Servicing Fee accrued Seller hereunder which are then due and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesowing.
(c) The Servicer shallshall deposit into the Administration Account, in accordance with on the priorities set forth in Section 1.4(d), deposit on last day of each Settlement Date into Period relating to a Portion of Capital (or at such other times as the account from Administrator shall require upon the occurrence and during the continuation of (i) any Unmatured Termination Event or Termination Event or (ii) at any time when the Rated Long Term Debt of Solectron is not rated at least Investment Grade or (iii) any event that materially and adversely affects the Servicer's ability to time specified by perform its obligations hereunder or the Administratorcollectibility of the Receivables), Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside Issuer pursuant to Section 1.4(b)(i) that represents or Section 1.4(f) with respect to such Portion of Capital and the aggregate lesser of each Purchaser Group’s Ratable Share (x) the amount of Collections then held for the Servicing Fee. Within three Business Days Issuer pursuant to Section 1.4(b)(iii) and (y) such Portion of Capital.
(d) Upon receipt of funds deposited into the last day of each Yield Period Administration Account pursuant to Section 1.4(c) with respect to any Portion of InvestmentCapital, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect shall cause such funds to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Issuer (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Groupx) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Portion of Investment maintained by Capital and (y) as a reduction of such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts Portion of Capital pursuant to the Purchasers within its Purchaser Group ratably according to Discount and feesSection 1.4(f), if applicable, and second, if the Servicer has from amounts 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’s own account Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 Day, first to the Purchased Interest exceeds 100%Issuer in payment in full of all accrued Discount with respect to such Portion of Capital, firstsecond to the Issuer in payment in full of such Portion of Capital, third, if WESCO the Servicer is not Solectron or an Affiliate thereof is not the Servicerthereof, to the Servicer’s own account Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Capital, secondfourth, to if 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 Capital and accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have Capital has been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO Solectron or an Affiliate thereof) have been paid in full, to the Issuer, the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, hereunder and sixth, then to the Servicer’s own account Servicer (if the Servicer is WESCO Solectron or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter Capital and Discount and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and to the Servicer to each Purchaser GroupIssuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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(gparagraphs (h) or (mo) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 paragraph (i) or (ii) of this Section 1.4(e), 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, any Purchaser Agent Administrator or any Purchaser 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 such Person but rather to have been retained by the Seller and, accordingly, such Person 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 thereofimmediately.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment a Portion of Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer Administrator at least two five Business Days’ ' prior written notice thereof for any reduction of Aggregate Investment (such notice to include including the amount of such proposed reduction and the proposed date on which such reduction will commence);,
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Capital not to be reinvested pursuant to Section 1.4(b)(ii) until the amount thereof not so reinvested shall equal the desired amount of reduction; , and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentIssuer, for payment to the Administrator (for the account of such Purchaser) on the next last day of the current Settlement DatePeriod relating to such Portion of Capital, and the Aggregate Investment (together with the Investment applicable Portion of any related Purchaser) Capital 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, provided that:,
(A) A. the amount of any such reduction shall be not less than $500,000 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 aggregate for all Purchaser Groups (unless the Aggregate Investment same Fixed Period, and
C. if two or more Portions of Capital shall be outstanding at the time of any proposed reduction, such reduction is less than $500,000, in which case such proposed reduction shall be applied, unless the Seller shall otherwise specify in the amount required notice given pursuant to reduce Section 1.4(f)(i), to the Aggregate Investment to zero); and
(B) Portion of Capital with respthe shortest remaining Fixed 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 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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate InvestmentCapital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Investment, be automatically reinvested 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.12, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested 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 Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the Purchasers the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections based on its InvestmentCollections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on of Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Investment(determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date into (or, solely with respect to Collections held for the account from time Purchasers pursuant to time specified Section 1.6(f)(iii), such other date approved by the Administrator719921903 05109795 10 Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the benefit of the Purchasers pursuant to Sections 1.4(bSection 1.6(b)(i), (ii) and 1.4(for (iii) or 1.6(f); provided, that if WESCO Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Peabody (or such Affiliate) that such the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, WESCO Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i1.6(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share Servicing Fee in payment in full of the accrued Servicing FeeFees so set aside. Within three Business Days of On the last day of each Yield Period with respect to any Portion of InvestmentSettlement Period, the applicable each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer and the Administrator by e-electronic mail of the amount of the Discount accrued with respect to such each Portion of Investment Capital during the related Yield Periodsuch Settlement Period or portion thereof.
(d) The Servicer Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c)) above, to the Servicer’s own account Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest Assets Coverage Percentage exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, first to the Servicer’s own account Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Servicing Discount and Fees, second, second to the Administrator for distribution to each Purchaser Agent ratably according to Investment Agents (for the benefit of the relevant Purchasers within such in their respective Purchaser Agent’s Purchaser GroupGroups) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment 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); it being understood that each Purchaser Agent shall distribute , third, to the amounts described 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 second, third and fourth clauses of this Section 1.4(d)(iiLC Collateral Account (other than amounts representing LC Fee Expectation) to equal the Purchasers within its Purchaser Group ratably according to Investment 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 case of the third clause of this Section 1.4(d)(iiLC Collateral Account), fees (not including fourth, to the Servicer in payment in full of all accrued Servicing Fee)Fees, fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) amounts owing under clauses first through fourth above have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent Agents (for the benefit of such Purchaser Agent and the Purchasers within such in their respective Purchaser Group) Groups), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and 719921903 05109795 11 sixth, to after the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full occurrence of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide account in payment of the Administrator with all information necessary Deferred Purchase Price 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 distributedsuch 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 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 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 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(gl(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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)) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Person Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Person Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentCapital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of Aggregate Investment (Capital and such notice to 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 benefit of the Administrator (for the benefit of each Purchaser ratably according to its InvestmentPurchaser), for payment to the Administrator (for by deposit into the account of such Purchaser) Administration Account on the next Settlement DateDate immediately following the current Settlement Period or such other date approved by the Administrator and the Majority Purchaser Agents, and the Aggregate Investment (together with the Investment of any related Purchaser) Capital shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) that the amount of any such reduction shall be not less than $500,000 300,000 and shall be an integral multiple of $100,000. Upon receipt by the Administrator in the aggregate for all Purchaser Groups (unless Administration Account of any amount paid in reduction of the Aggregate Investment 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 time 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 reduction 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 less than $500,000continuing and so long as the Facility Termination Date has not yet occurred, in which case 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 reduction shall be Qualifying Interim Report as Collections on deposit in the Lock-Box Account and/or LC Collateral Account in excess of the amount required necessary to reduce ensure that the Aggregate Investment to zeroPurchased 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%; and
(B) with respsuch 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 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 Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Facility Agent, segregate in a separate account approved by the Administrator 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 EffectFacility Agent) for the benefit of each Purchaser GroupBanks, out of the Banks' Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable 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, ratably, on behalf of each Purchaser Groupthe Banks, the remainder of the Banks' Share of such Collections. Such ; such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers Banks (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Facility Agent, segregate in a separate account approved by the Administrator 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 EffectFacility 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%; 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 Day (or any day following the provision of an Exiting Notice)Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Facility Agent, segregate in a separate account approved by the AdministratorFacility Agent) for the benefit of each Purchaser Group Banks the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date Banks' Share 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))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” (or any day following the provision of an Exiting Notice) " 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 Administrator and a Simple Majority of the Purchasers Facility Agent (or (x) in the case of proceedings giving rise to an Exiting NoticeEvent of Bankruptcy as described in clause (a)(i) of the definition of "Termination Day", such Exiting Notice 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 been revoked by the related Exiting Purchaser and written notice thereof has been provided by received satisfactory evidence of such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicerrelease), such previously set-set aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, 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 conditions or revocation of such Exiting Notice; dismissal, 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables 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 shall, in accordance with the priorities set forth in Section 1.4(d), Collateral Agent shall deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO Administration Account (or such Affiliate) that such right is revokedother account designated by the Facility Agent), WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of on the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respof
Appears in 1 contract
Sources: Receivables Participation Agreement (Weirton Steel 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 (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of 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 each Purchaser Group, the remainder of such Collections. Such remainder 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 benefit of the Purchasers Secured Parties (and shallor, if so requested by the Administrative Agent at the request any time that an Event of the Administrator (Termination shall have occurred that has not been waived in accordance with the consent or at the direction of a Simple Majority of the Purchasers)this Agreement, segregate in a separate account approved designated by the Administrator ifAdministrative Agent, at which shall be an account maintained and controlled by the time 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 Sellers or received in any Lock-Box or Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Sellers from such Collections the amount (if any) to be applied to pay the purchase price for Receivables purchased by the Sellers on such date in accordance with the terms of the applicable Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 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 requestpayments), there plus, if applicable, the amount of any such Yield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser or Purchaser Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
(x) prior to the occurrence of the Termination Date, to the extent that a Capital Coverage Deficit exists an Unmatured Termination Event or a Termination Event or if on such date, to the failure to so segregate reasonably could be expected to cause a Material Adverse EffectPurchasers (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 Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Capital Coverage Deficit to 100%; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.10 and any Purchaser zero (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$0);
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (iiy) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment 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 Date, to each Purchaser (z) occurs at any time when ratably, based on 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 aggregate outstanding Capital of each Purchaser at such time) for the benefit return in full of the Purchasers for application pursuant to Section 1.6(a) within one Business Day aggregate outstanding Capital of such reduction or adjustment;Purchaser at such time; or
(iiz) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III is not true with respect prior to any Pool Receivable, the Seller shall be deemed to have received on such 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 Date, at any time when the Purchased Interest exceeds 100% election of the Sellers and in accordance with Section 2.02(d), to the return of all or any Termination Event has occurred and is continuingportion of the outstanding Capital of the Purchasers at such time (ratably, based on the Seller shall pay the amount aggregate outstanding Capital of such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator each Purchaser 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 or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 1 contract
Sources: Receivables Purchase Agreement (OUTFRONT Media 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 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 out of the Administrator (with the consent or at the direction percentage of a Simple Majority of the Purchasers), segregate in a separate account approved such Collections represented by the Administrator ifAggregate Participation, at FIRST the time of such requestServicer shall transfer from the Deposit Accounts to the Liquidation Account, there exists an Unmatured Termination Event or a Termination Event or if and the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) Agent shall hold therein for the benefit of each Purchaser Group, out of such Collections, firstthe Insurer, an amount equal to the Aggregate Discount Premium accrued through such day for each Portion of Investment 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 each Purchaser Group Fee Letter sum of the 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 aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set asidetransferred 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, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of the percentage of such Collections. Such remainder shallCollections 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 extent representing a return on Servicer and the Aggregate Investment, ratably, according to each Purchaser’s Investment, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator 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 Day Day, (or any day following A) the provision of an Exiting Notice)Servicer shall transfer to the Liquidation Account, set aside, segregate and hold in trust (and shall, at the request out of the Administrator Collections in the Deposit Accounts (with the consent or at the direction of a Simple Majority first out of the Purchasers)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 each Purchaser, such Purchaser's Distribution Percentage of the benefit entire remainder of the 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 Group Purchaser, such Purchaser's Termination Share of the entire remainder of the Collections (or in the case Deposit Accounts represented by the Seller's share of the Collections, if 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) if such day is not a Termination 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 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 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 Exiting amount equal to the sum of any accrued and unpaid Program Fees payable on such Settlement Date (if any) and accrued and unpaid Discount payable on each Portion of the Investment of such Purchaser with a Yield Period ending on such Settlement Date (if any) (provided that the amount payable pursuant to this priority second shall not exceed the [ * ]), THIRD, to the applicable Purchaser Account in an amount equal to sum of 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 second above) and FOURTH, to the account of the 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 not a Termination Day and is a Settlement Date associated with the last day of any Yield Period of any Portion of the Investment of any Purchaser, the Collections held on deposit in the 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 ratable share '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 Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent any accrued and unpaid Program Fees (to the Administrator, the Seller extent not paid pursuant to clause THIRD above) and the Servicer), such previously set-aside amounts shallSEVENTH, to the extent representing a return on Aggregate Investment (or Agent and the Investment of the Exiting Insurer such Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s 's Termination Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting Agent and administering [ * ] in enforcing their rights and the Pool Receivables.rights of the Indemnified Parties hereunder (to the extent not paid pursuant to clause FIRST above);
(civ) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each [ * ];
(v) if such Settlement Date into is a Servicer Payment Date and neither AFC nor any of its Affiliates are the account from time to time specified by the AdministratorServicer, 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 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 Date 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 any Purchaser's Account pursuant to Sections 1.4(bSECTION 1.4(c) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investmentsuch Purchaser's Participation, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect shall cause such funds to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), 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 Administrator for distribution payment in full (on a PARI PASSU basis) of all Discount and Program Fees with respect to each Purchaser Agent ratably according 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 accrued during with respect to any Portion of Investment of such Purchaser with a Yield Period (for ending on the benefit of applicable Settlement Date and all accrued and unpaid Program Fees due on the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in 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 the Investment maintained by of such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to with a Yield Period ending on the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each applicable Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, ; and
(ii) if such distribution occurs on a 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, if WESCO or an Affiliate thereof is not the ServicerSECOND, to the Servicer’s own account 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 Servicing Feessuch Purchaser's Investment, secondFOURTH, to if 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 and accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within of such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunderhereunder to such Purchaser. If a Purchaser so directs, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full any of the aggregate of each foregoing payments owed to such Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall may 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 distributedon 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, discount rebate or other adjustment made by the Originator, 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, Originator 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(gPARAGRAPHS A.(g) or (mA.(o) of Exhibit EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day 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 PARAGRAPH (i) or (ii) of this SECTION 1.4(e), 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 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 in writing its payment for application to specific ReceivablesCredit and Collection Policy; and
(iv) if and to the extent the Administrator, any Purchaser Agent Agent, the Agent, [ * ] or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person Purchaser Agent, the Agent, [ * ] or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate the aggregate of the Investment of the Participations of the Revolving Purchasers (but not to commence the liquidation, or reduction to zero, of the entire Aggregate InvestmentInvestment of the Participations), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent Agent, [ * ] and the Servicer Agent at least two Business Days’ ' prior written notice thereof for any reduction of Aggregate Investment (such notice to include including the amount of such proposed reduction and the proposed date on which such reduction will commence);,
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause 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 benefit of each Purchaser ratably according to its Investmentthe Revolving Purchasers, and for payment to the Administrator (for the account of such Purchaser) each Revolving Purchaser on a pari passu basis on the next Settlement Date, and the Aggregate Investment (together with Date relating to any Portion of the Investment of any related Purchasersuch Revolving Purchaser [ * ] pursuant to SECTION 1.4(c)(ii) shall be deemed reduced in or (iii); provided that,
A. unless otherwise agreed by the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) Agent the amount of any such reduction with respect to each Purchaser shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction 1,000,000 and shall be in an integral multiple of $100,000, and the amount required to reduce the Aggregate entire Investment to zero); and
(B) with resp
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administrationthe administration of the Pool Receivables, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer, after payment in full of the Servicing Fee accrued and payable through such day:
(i) set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, aside and second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate 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 each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), 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 Day (or any a day following on which the provision Commitment of an Exiting Notice)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 (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the ratable benefit of each Purchaser Group the entire remainder of the such Collections (or or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date day on which the Commitment of the provision of an such Exiting Notice Purchaser terminates, until the date such Purchaser’s Investment Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment 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 Investment 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” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on of Aggregate Investment (or the Investment of the Exiting Purchaser) and Capital, ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) above on the next day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; to 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivablesany other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d)) below, deposit into an account designated for each Purchaser by its Purchaser Agent, on each Settlement Date into the account from time to time specified by the AdministratorDate, Collections held for such Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f), provided, however, that to the extent any payments of Capital are required to be paid to the Administrator for the benefit of the Purchasers Purchaser Agents pursuant to Sections 1.4(b) and 1.4(f); providedthe foregoing sections, that if WESCO the Servicer shall pay such amounts to the Administrator. On or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant prior to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of InvestmentCalculation Period, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail email communication or other electronic delivery of the amount of the Discount and Fees accrued with respect to during such Portion of Investment during the related Yield PeriodCalculation Period or portion thereof and payable on such date.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c1.4(b) (to the extent not already distributed pursuant to Section 1.4(b)) on each Settlement Date, 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 the Administrator for distribution to each Purchaser Agent ratably according to (based on the Discount and Fees accrued during such the related Yield Period 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 Investment maintained by the Purchasers within such PurchasersPurchaser 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 Fees owed to clause (b)(i) and has not retained each such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, 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, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (based on the Discount and Fees accrued during the related Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount and Fees with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third; second, to the Administrator for distribution 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) ratably according to the fees accrued (other than Servicing Fees)) in payment in full of all (x) if such accrued fees day is a Termination Day, each Purchaser’s Capital, (other than Servicing Feesy) with respect if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100% or (z) if such day is not a Termination Day but is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Portion Purchaser Agent shall distribute the amounts described in clauses first and second of Investment maintained by this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively, owed to such Purchasers, fourth); third, 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 (LC Collateral Account for the benefit of the relevant Purchasers within LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount (x) if such Purchaser Agent’s Purchaser Groupday 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) 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 fourth, if all amounts described in the second, required to be paid and deposited pursuant to preceding clauses first through third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereofii) have been so paid and deposited in full, to the Administrator for distribution ratably to each Purchaser Agent Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and fifth, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is either (A) reduced or adjusted canceled as a result of (I) any defective, rejected, returned, repossessed or foreclosed returned goods or services, any cash or other discount, or any revisionfailure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, cancellation, allowance, discount (II) any change in or cancellation of any of the terms of such Contract or invoice or any other adjustment made by the Seller or any Affiliate of the Selleran Originator, or the Servicer or the Seller which reduces the amount payable by the Obligor on the related Receivable, (III) any Affiliate of the Servicerrebates, 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 Sellersame or a related transaction or an unrelated transaction), or (B) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the Servicer or any Affiliate discharge in bankruptcy of the Servicer and an ObligorObligor 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 reduction, adjustment, cancellation or adjustment 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 (x) causes the Purchased Interest to exceed 100%adjustment, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at pay 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 all such reduction or adjustment amounts in respect thereof 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 and their assigns and for application pursuant to this Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of the full Outstanding Balance of such Pool Receivable in fulland shall, and if such breach subject to Section 1.4(e)(v), (x) causes if such day is not a Termination Day, hold any and all such amounts in trust for the Purchased Interest to exceed 100%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) occurs after the occurrence of the Facility if such day is a Termination Date or Day, within two (z2) occurs at Business Days, pay any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay the amount of all such deemed Collection amounts in respect thereof 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”), 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 (iSections 1.4(e)(i) or (ii), ) or as otherwise required by Applicable Law applicable 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 in writing its payment for application to specific Receivables; andotherwise specified by the applicable Obligor;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof;
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%; and
(vi) if at any time the Seller satisfies in full its obligations hereunder with respect to Deemed Collections (whether by payment to a Lock-Box Account and/or by reducing the Net Receivables Pool Balance), the Administrator (on behalf of the Purchaser Agents and the Purchasers) shall reconvey to the Seller its interest in the Pool Receivable(s) to which such Deemed Collection relates, without recourse and without any representation or warranty except that such Pool Receivable is free and clear of liens, security interests, charges and encumbrances created by the Administrator and thereafter the Seller shall not sell any interest in such Receivable to the Administrator (on behalf of the Purchaser Agents and the Purchasers).
(f) If at any time the Seller shall wish wishes to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital the Seller may do so as follows:
(i) the Seller shall give deliver to the Administrator, each Purchaser Agent and the Servicer a Paydown Notice at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment (Capital, and each such notice to include Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator (for the account ratable benefit of each such Purchaser) Purchaser on the next Settlement Date, date specified in the Paydown Notice (or such other date as agreed to by the Administrator) and the Aggregate Investment Capital (together with the Investment Capital of any related each Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account ratable benefit of each such Purchaser) Purchaser only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction (if not a reduction to zero) shall be not less than an integral multiple of $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero)100,000; and
(B) with resprespect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Targa Resources Partners LP)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment Capital and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate InvestmentCapital, ratably, according to each Purchaser’s InvestmentCapital, 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 benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator 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 EffectAdministrator) 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 if (x) in the Facility Termination Date has been extended pursuant to Section 1.10 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.101.22, to extend its (or its Committed Purchaser’s) 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 Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers)Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its InvestmentCapital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice Notice, as the case may be, until the date such Purchaser’s Investment 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 Investment 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 Investment 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 a Simple the Majority of the Purchasers Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser Purchaser, respectively and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment Capital (or the Investment Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s InvestmentCapital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such 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 day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool ReceivablesReceivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date into the account from time to time specified by the Administrator(for any Portion of Investment), Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i)or (f), plus the benefit amount of Collections then held for the related Purchasers pursuant to Sections 1.4(bclauses (b)(ii) and 1.4(f)(iii) of Section 1.4; provided, that if WESCO ANR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO ANR (or such Affiliate) that such right is revoked, WESCO ANR (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(iclause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Purchasers’ Share of the Servicing Fee. Within three Business Days of On or prior to the last day of each Yield Period with respect to any Portion of InvestmentPeriod, the applicable each Purchaser Agent will notify the Servicer and the Administrator by e-mail facsimile of the amount of the Discount accrued during such Yield Period or portion thereof with respect to such each Portion of Investment during the related Yield PeriodCapital for each Purchaser within such Purchaser Agent’s Purchaser Group.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) Fees with respect to each Portion of Investment Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and feesDiscount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable 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 WESCO ANR or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Administrator for distribution second to each Purchaser Agent ratably according (based on the aggregate accrued and unpaid Discount and Fees payable to Investment 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 such accrued Discount and Fees with respect to each Portion of Investment Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution third to each Purchaser Agent ratably according to the aggregate of the Investment 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 Investment 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 second, third first and fourth second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment Discount and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount (or, in if such day is not a Termination Day, the case 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 third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeeLC Participation Amount), fifth, if the Aggregate Investment Capital and accrued Aggregate Discount with respect to each Portion of Investment 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 WESCO ANR or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Administrator for distribution ratably amounts payable to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) ), the Administrator, each Administrator and any other Indemnified Party and each or Affected Person, Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunderhereunder and, and sixth, to the Servicer’s own account (if the Servicer is WESCO ANR or an Affiliate thereof) in payment in full of the aggregate of each Purchaser Group’s Ratable the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate InvestmentCapital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after 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. 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, 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 and shall immediately pay any and all 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 amounts in respect thereof 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 and their assigns and for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment1.4;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (m3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such date, day a Collection of such Pool Receivable in full, full and if shall immediately pay any and all 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 amounts in respect thereof 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 and their assigns and 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)(ii1.4 (Collections deemed to have been received pursuant to clause (i)or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”), 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 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, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two Business Days’ Days prior written notice thereof to the date of such reduction for any reduction of the Aggregate Investment Capital less than or equal to $25,000,000 (or such notice greater amount as agreed to include by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its InvestmentCapital, for payment to the Administrator each such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) on the next Settlement DateDate (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment Capital (together with the Investment Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator such Purchaser (or its related Purchaser Agent for the account benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in 100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the aggregate for all Purchaser Groups (unless the entire Aggregate Investment at the time of such reduction is less than $500,000, in which case Capital after giving effect to such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respnot less than $20,000,
Appears in 1 contract
Sources: Receivables Purchase Agreement (Alpha Natural Resources, Inc.)