Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(c) or (d) (and in such case only to the extent of the funds so allocated), (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Date (in which case such Advance shall be payable in full). (b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses (c) or (d)) below), any Collections received by the Borrower or the Servicer shall be held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not set aside for the payment of accrued and unpaid Borrower Obligations may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d). On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections received on such day (and, if applicable, any additional amounts received or held by the Borrower for the payment of any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On and after the Commitment Termination Date the Borrower shall and shall cause the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) the Administrative Agent, (i) remit to the Agent Account the amounts set aside pursuant to the preceding sentence, and (ii) apply such amounts in accordance with Section 2.08(d). (c) Notwithstanding the provisions of clause (b) above, if:
Appears in 3 contracts
Samples: Credit and Security Agreement (Sungard Data Systems Inc), Credit and Security Agreement (Sungard Capital Corp Ii), Credit and Security Agreement (Sungard Capital Corp Ii)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(c) or (d) (and in such case only to the extent of the funds so allocated), (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses (c) or (d)) below), any Collections received by the Borrower or the Servicer shall be held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not set aside for the payment of accrued and unpaid Borrower Obligations may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d). On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections received on such day (and, if applicable, any additional amounts received or held by of the Borrower for the payment of any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On and after the Commitment Termination Date the Borrower shall and shall cause the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) the Administrative Agent, (i) remit to the Agent Account the amounts set aside pursuant to the preceding sentence, and (ii) apply such amounts in accordance with Section 2.08(d).
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 2 contracts
Samples: Credit and Security Agreement (SunGard Systems International Inc.), Credit and Security Agreement (Sungard Data Systems Inc)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(c) or (d) (and in such case only to the extent of the funds so allocated), (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses (c) or (d)) below)Date, any Collections proceeds of Borrower Collateral received by the Borrower or the Servicer shall be set aside and held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not required to be set aside for prior to the payment of accrued and unpaid Borrower Obligations Commitment Termination Date may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d)Agreement. On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections proceeds of Borrower Collateral received on such day (and, if applicable, any and an additional amounts received or held by the Borrower amount for the payment of any accrued and unpaid Borrower Obligations) Obligations owed by the Borrower and not previously paid by Borrower in accordance with clause (d) belowBorrower; provided that if the Administrative Agent has exercised its right to obtain exclusive control over delivered a Notice of Exclusive Control in accordance with the Collection Accounts and the Concentration Accountsterms hereof, all Collections proceeds of Borrower Collateral received by the Administrative Agent shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On .
(c) From and after the Commitment Termination Date and on each Business Day on which any Borrower Obligations are due for payment, the Borrower shall and shall cause the Servicer to(and/or, at any time upon the request from time to time by (or pursuant to standing instructions from) if the Administrative AgentAgent has delivered a Notice of Exclusive Control, the Administrative Agent to the extent that it has received proceeds of Borrower Collateral), shall apply all proceeds of Borrower Collateral then available in the following order of priority:
(i) remit first, to the extent then due and payable, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent Account the amounts set aside which are reimbursable pursuant to the preceding sentence, and terms hereof;
(ii) apply second, if such amounts Business Day is a Settlement Date, to the payment of accrued and unpaid interest which is then due and payable in accordance with Section 2.08(d).respect of the Advances, pro rata based on the Commitments;
(ciii) Notwithstanding third, if the provisions Servicer has been replaced as a result of clause the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(biv) abovefourth, if:to the payment of any outstanding Advances then due and payable, pro rata based on the Commitments; provided, that principal on Advances shall be applied in the following order, to the payment of the Outstanding Principal Amount of Advances, first, in respect of Swing Line Advances, and second, in respect of Revolving Credit Advances, pro rata based on the Commitments;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Outstanding Principal Amount of all other Advances, first, in respect of Swing Line Advances and second, in respect of Revolving Credit Advances, pro rata based on the Commitments;
(vi) sixth, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04; and
(vii) seventh, to be paid to the account designated by the Borrower.
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (Cumulus Media Inc), Receivables Funding and Administration Agreement (Cumulus Media Inc)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(cclause (iv)(A), (v) or (dvi) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Termination Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses [Reserved].
(c) or (d)) below), any Collections received by the Borrower or the The Servicer shall be held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not set aside for the payment of accrued and unpaid Borrower Obligations may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d). On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the benefit of the Secured Parties all Collections received on such day (andor, if applicable, any additional amounts received or held by the Borrower for the payment of any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held so requested by the Administrative Agent during a Ratings Period or following the occurrence and continuation of a Termination Event or Event of Servicer Termination, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its designee sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Transferred Receivables that are received by the Servicer or the Borrower or received in any Lockbox or any Account; provided, however, that so long as each of the conditions precedent set forth in Section 3.03 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 Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall distribute such Collections in the following order of priority:
(i) first, to the Agent Account, to the extent then due and payable, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the Agent Account, to the payment of accrued and unpaid Yield which is then due and payable in respect of the applicable Advances, pro rata based upon amounts due;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the Agent Account, to be paid (A) first, if required pursuant to Section 2.02(c)(v), in an amount sufficient to reduce the aggregate Accordion Advanced Amount (ratably according to each Lender’s Accordion Advanced Amount, if any) until such amount is reduced to zero and (B) second, in an amount equal to all outstanding Advances (ratably according to each Lender’s outstanding Advances, if any) which are then due and payable;
(v) fifth, to the extent that a Funding Excess exists, to the Agent Account, in payment of a portion of the Outstanding Principal Amount at such time, in an aggregate amount equal to the amount necessary to reduce the Funding Excess to zero ($0), together with amounts payable with respect thereto under Section 2.10, if any, (ratably according to each Lender’s outstanding Advances, if any);
(vi) sixth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the Agent Account, to the payment of the Outstanding Principal Amount of all other Advances, together with amounts payable with respect thereto under Section 2.10, if any, pro rata;
(vii) seventh, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including the expenses of the Lenders reimbursable under Section 12.04; and
(viii) eighth, to be paid to the Borrower.
(d) If and to the extent a Funding Excess exists on any Business Day, the Borrower (or the Servicer on its behalf) shall deposit an amount equal to the amount of such Funding Excess in the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day, which amount shall be applied by the Administrative Agent, in immediate repayment of the outstanding amount of Advances (together with amounts payable with respect thereto under Section 2.10).
(e) The Borrower and the Servicer hereby irrevocably waive the right to direct the application of any and all payments received from or on behalf of the Borrower or the Servicer, and each of the Borrower and the Servicer hereby irrevocably agree that any and all such payments shall be applied by the Administrative Agent in accordance with this Section 2.08.
(f) All payments of principal of the Advances and all payments of interest, Xxxx and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. Any such payment becoming due on a day other than a Business Day shall be payable on the next succeeding Business Day. Payments received at or prior to 1:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 1:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(g) Any and all payments by the Borrower hereunder and under any Related Document shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, duties, assessments, fees, Charges or withholdings (including any interest, additions to tax or penalties applicable thereto) (such taxes, levies, imposts, deductions, duties, etc. being “Taxes”), excluding (i) any such Taxes imposed on or measured by the net income, branch profits, gross receipts or franchise taxes of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized, tax resident or doing business or, in each case, by any political subdivisions thereof, (ii) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Affected Party with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Affected Party acquires such interest in the Loan or Commitment or (y) such Affected Party changes its lending office, except in each case to the extent that, pursuant to this section, amounts with respect to such Taxes were payable either to such Affected Party’s assignor immediately before such Affected Party became a party hereto or to such Affected Party immediately before it changed its lending office, (iii) any withholding Taxes imposed under FATCA and (iv) any Taxes attributable to such Affected Party’s failure to comply with Section 2.08(h) (such non-excluded Taxes being “Indemnified Taxes”). If the Borrower shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable hereunder, (i) if such Tax is an Indemnified Tax, the sum payable shall be increased as much as shall be necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the Borrower shall make such deductions or withholdings, and (iii) the Borrower shall pay the full amount deducted or withheld to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Taxes pursuant to this Section 2.08. On and after the Commitment Termination Date , the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any Indemnified Taxes imposed by any jurisdiction on amounts payable under this Section 2.08) payable or paid by such Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.
(h) Any Affected Party that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Related Document shall cause deliver to the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Affected Party, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Affected Party is subject to backup withholding or information reporting requirements. Furthermore, if a payment made to an Affected Party under any Related Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Affected Party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Affected Party shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Affected Party has complied with such Affected Party’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for these purposes, “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Affected Party agrees that if any form or certification it previously delivered pursuant to this Section 2.08(g) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(i) remit The Administrative Agent shall provide the Borrower an IRS Form W-9, IRS Form W-8BEN-E or IRS Form W-8ECI, as applicable, with respect to income it is receiving for its own account, and an IRS Form W-9 or IRS Form W-8IMY with respect to amounts payable to it for the account of others at the closing and upon the reasonable request of the Borrower.
(j) The Servicer hereby agrees to indemnify and hold harmless each Affected Party and the Administrative Agent from and against any and all losses arising from a failure to timely receive the Outstanding Principal Amount along with Xxxxx and Xxxx on the Advances to the Agent Account the amounts set aside pursuant to the preceding sentence, and extent caused by any income tax imposed on or payable by Xxxxxxxx.
(iik) apply such amounts Upon receipt of a notice in accordance with Section 2.08(d)7.03 of the Sale Agreement, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(cclause (iv)(A), (v) or (dvi) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Termination Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses [Reserved].
(c) or (d)) below), any Collections received by the Borrower or the The Servicer shall be held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not set aside for the payment of accrued and unpaid Borrower Obligations may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d). On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the benefit of the Secured Parties all Collections received on such day (andor, if applicable, any additional amounts received or held by the Borrower for the payment of any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held so requested by the Administrative Agent during a Ratings Period or following the occurrence and continuation of a Termination Event or Event of Servicer Termination, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its designee sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Transferred Receivables that are received by the Servicer or the Borrower or received in any Lockbox or any Account; provided, however, that so long as each of the conditions precedent set forth in Section 3.03 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 Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall distribute such Collections in the following order of priority:
(i) first, to the Agent Account, to the extent then due and payable, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the Agent Account, to the payment of accrued and unpaid Yield which is then due and payable in respect of the applicable Advances, pro rata based upon amounts due;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the Agent Account, to be paid (A) first, if required pursuant to Section 2.02(c)(v), in an amount sufficient to reduce the aggregate Accordion Advanced Amount (ratably according to each Lender’s Accordion Advanced Amount, if any) until such amount is reduced to zero and (B) second, in an amount equal to all outstanding Advances (ratably according to each Lender’s outstanding Advances, if any) which are then due and payable;
(v) fifth, to the extent that a Funding Excess exists, to the Agent Account, in payment of a portion of the Outstanding Principal Amount at such time, in an aggregate amount equal to the amount necessary to reduce the Funding Excess to zero ($0), together with amounts payable with respect thereto under Section 2.10, if any, (ratably according to each Lender’s outstanding Advances, if any);
(vi) sixth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the Agent Account, to the payment of the Outstanding Principal Amount of all other Advances, together with amounts payable with respect thereto under Section 2.10, if any, pro rata;
(vii) seventh, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including the expenses of the Lenders reimbursable under Section 12.04; and
(viii) eighth, to be paid to the Borrower.
(d) If and to the extent a Funding Excess exists on any Business Day, the Borrower (or the Servicer on its behalf) shall deposit an amount equal to the amount of such Funding Excess in the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day, which amount shall be applied by the Administrative Agent, in immediate repayment of the outstanding amount of Advances (together with amounts payable with respect thereto under Section 2.10).
(e) The Borrower and the Servicer hereby irrevocably waive the right to direct the application of any and all payments received from or on behalf of the Borrower or the Servicer, and each of the Borrower and the Servicer hereby irrevocably agree that any and all such payments shall be applied by the Administrative Agent in accordance with this Section 2.08.
(f) All payments of principal of the Advances and all payments of interest, Xxxx and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. Any such payment becoming due on a day other than a Business Day shall be payable on the next succeeding Business Day. Payments received at or prior to 1:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 1:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(g) Any and all payments by the Borrower hereunder and under any Related Document shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, duties, assessments, fees, Charges or withholdings (including any interest, additions to tax or penalties applicable thereto) (such taxes, levies, imposts, deductions, duties, etc. being “Taxes”), excluding (i) any such Taxes imposed on or measured by the net income, branch profits, gross receipts or franchise taxes of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized, tax resident or doing business or, in each case, by any political subdivisions thereof, (ii) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Affected Party with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Affected Party acquires such interest in the Loan or Commitment or (y) such Affected Party changes its lending office, except in each case to the extent that, pursuant to this section, amounts with respect to such Taxes were payable either to such Affected Party’s assignor immediately before such Affected Party became a party hereto or to such Affected Party immediately before it changed its lending office, (iii) any withholding Taxes imposed under FATCA and (iv) any Taxes attributable to such Affected Party’s failure to comply with Section 2.08(h) (such non-excluded Taxes being “Indemnified Taxes”). If the Borrower shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable hereunder, (i) if such Tax is an Indemnified Tax, the sum payable shall be increased as much as shall be necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the Borrower shall make such deductions or withholdings, and (iii) the Borrower shall pay the full amount deducted or withheld to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Taxes pursuant to this Section 2.08. On and after the Commitment Termination Date , the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any Indemnified Taxes imposed by any jurisdiction on amounts payable under this Section 2.08) payable or paid by such Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.
(h) Any Affected Party that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Related Document shall cause deliver to the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Affected 11 Party, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Affected Party is subject to backup withholding or information reporting requirements. Furthermore, if a payment made to an Affected Party under any Related Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Affected Party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Affected Party shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Affected Party has complied with such Affected Party’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for these purposes, “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Affected Party agrees that if any form or certification it previously delivered pursuant to this Section 2.08(g) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(i) remit The Administrative Agent shall provide the Borrower an IRS Form W-9, IRS Form W-8BEN-E or IRS Form W-8ECI, as applicable, with respect to income it is receiving for its own account, and an IRS Form W-9 or IRS Form W-8IMY with respect to amounts payable to it for the account of others at the closing and upon the reasonable request of the Borrower.
(j) The Servicer hereby agrees to indemnify and hold harmless each Affected Party and the Administrative Agent from and against any and all losses arising from a failure to timely receive the Outstanding Principal Amount along with Xxxxx and Xxxx on the Advances to the Agent Account the amounts set aside pursuant to the preceding sentence, and extent caused by any income tax imposed on or payable by Xxxxxxxx.
(iik) apply such amounts Upon receipt of a notice in accordance with Section 2.08(d)7.03 of the Sale Agreement, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(cclause (iii) or (div) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Commitment Termination Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by On each Business Day, the Administrative Agent shall allocate amounts on deposit in the Agent Account on such day and not previously allocated under this subsection (b) as follows, in the following order of priority:
(i) first, to be retained in the Agent Account and paid in accordance with clause (i) of the following subsection (c), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to clauses the terms hereof; provided, that, the sum of (i) the amounts retained pursuant to this clause first and (ii) the amounts paid pursuant to clause (i) of the following subsection (c) shall not exceed $100,000 in any calendar year;
(ii) second, to be retained in the Agent Account and paid in accordance with clause (ii) of the following subsection (c), an amount equal to the aggregate interest with respect to all outstanding Advances then accrued and unpaid;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to be retained in the Agent Account and paid in accordance with clause (iii) of the following subsection (c), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to be withdrawn from the Agent Account and paid, pro rata, to the Persons entitled thereto, an amount equal to all outstanding Advances which are then due and payable;
(v) fifth, the extent not already retained in the Agent Account in accordance with clause first, to be retained in the Agent Account and paid in accordance with clause (vi) of the following subsection (c), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(vi) sixth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, all such remaining amounts not to exceed the Outstanding Principal Amount to be retained in the Agent Account until paid in accordance with the following subsection (c) or all such conditions are satisfied;
(d)vii) belowseventh, to be retained in the Agent Account and paid in accordance with the applicable provisions of the following subsection (c), any Collections received by an amount equal to the Borrower or the Servicer shall be held in trust by the Servicer for the payment aggregate amount of any all other accrued and unpaid Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04; and
(viii) eighth, unless a Termination Event or Incipient Termination Event has occurred and is continuing, any remaining amounts on deposit in the Agent Account, to be paid to the Borrower Account (if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Agent Account).
(c) On each Settlement Date the Administrative Agent shall withdraw amounts on deposit in the Agent Account and pay such amounts as provided follows in the following order of priority:
(i) first, to the extent then due and payable, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof; provided, that, the aggregate amount paid pursuant to this Section 2.08. Any Collections clause first in any calendar year shall not set aside for exceed $100,000;
(ii) second, to the payment of accrued and unpaid Borrower Obligations may be used by interest which is then due and payable in respect of the Borrower for applicable Advances, pro rata;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the payment of any outstanding Advances then due and payable, pro rata; provided, that principal on Advances shall be applied in the following order, to the payment of the Outstanding Principal Amount of Advances, first, in respect of Swing Line Advances, (provided, that if a Funding Excess exists and any outstanding Swing Line Advances were made in violation of the fourth sentence of Section 2.01(b)(i), then such Swing Line Advance will be repaid after the Revolving Credit Advances), and second, in respect of Revolving Credit Advances, pro rata;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Outstanding Principal Amount of all other Advances, first, in respect of Swing Line Advances (provided, that if a Funding Excess exists and any outstanding Swing Line Advances were made in violation of the fourth sentence of Section 2.01(b)(i), then such Swing Line Advance will be repaid after the Revolving Credit Advances), and second, in respect of Revolving Credit Advances, together with amounts owing payable with respect thereto under Section 2.08(d). On 2.10, if any, pro rata;
(vi) sixth, to the Commitment Termination Date extent then due and payable and not already paid in accordance with clause first above, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(vii) seventh, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04; and
(viii) eighth, to be paid to the Borrower Account.
(d) If and to the extent a Funding Excess exists on each day thereafterany Business Day, the Borrower shall cause deposit an amount equal to the Servicer to set aside and hold amount of such Funding Excess in trust for the Secured Parties all Collections received Agent Account by no later than 11:00 a.m. (New York time) on such day (andthe immediately succeeding Business Day, if applicable, any additional amounts received or held by the Borrower for the payment of any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections which amount shall be held applied by the Administrative Agent first, in immediate repayment of the outstanding amount of Swing Line Advances, and if no Swing Line Advances are outstanding, and second, in immediate repayment of the outstanding amount of Revolving Credit Advances (together with amounts payable with respect thereto under Section 2.10).
(e) To the extent that amounts on deposit in the Agent Account on any day are insufficient to pay amounts due on such day in respect of the matured portion of any Advances or its designee for application pursuant to this Section 2.08. On any interest, Fees or any other amounts due and after payable by the Commitment Termination Date Borrower hereunder, the Borrower shall and shall cause the Servicer topay, at any time upon the request notice from time to time by (or pursuant to standing instructions from) the Administrative Agent, (i) remit the amount of such insufficiency to the Administrative Agent Account in Dollars, in immediately available funds (for the amounts set aside pursuant account of the Administrative Agent, the applicable Lenders, Affected Parties or Indemnified Persons) not later than 11:00 a.m. (New York time) on such day. Any such payment made on such date but after such time shall be deemed to the preceding sentencehave been made on, and interest shall continue to accrue and be payable thereon at the LIBOR Rate (iiin the case of LIBOR Rate Advances) apply such amounts or the Index Rate (in accordance with Section 2.08(dall other cases), until the next succeeding Business Day.
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(cclause (iv) or (dv) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Termination Date (in which case such Advance shall be payable in full).
(b) Prior On each Business Day, the Borrower (or the Servicer on its behalf) shall allocate amounts on deposit in the Accrual Account on such day and not previously allocated under this subsection (b) as follows, in the following order of priority:
(i) first, to be retained in the Accrual Account and paid in accordance with clause (i) of the following subsection (c), an amount equal to the Commitment Termination aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained in the Accrual Account and paid in accordance with clause (ii) of the following subsection (c), an amount equal to the aggregate Yield (which, in the case of Yield computed by reference to the CP Rate, shall be determined for such purpose using the CP Rate most recently determined by the applicable Administrator) with respect to all outstanding Advances then accrued and unpaid; provided that, at its option, the Borrower (or the Servicer on its behalf) may elect to retain the aggregate Yield anticipated to accrue through the following Settlement Date (and not previously set aside) and, once so set aside, no additional funds need be set aside pursuant to this clause (ii) unless in the absence interim any applicable Administrator provides an updated higher CP Rate;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to be deposited into the Accrual Account and paid in accordance with clause (iii) of the following subsection (c), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to be retained in the Accrual Account and paid, pro rata, to the Persons entitled thereto, an amount equal to all outstanding Advances which are then due and payable;
(v) fifth, if any instruction or direction by of the Administrative Agent pursuant conditions precedent set forth in Section 3.02 shall not be satisfied, all such remaining amounts not to clauses exceed the Outstanding Principal Amount to be retained in the Accrual Account until paid in accordance with the following subsection (c) or all such conditions are satisfied;
(d)vi) belowsixth, to be retained in the Accrual Account and paid in accordance with the applicable provisions of the following subsection (c), any Collections received by an amount equal to the Borrower or the Servicer shall be held in trust by the Servicer for the payment aggregate amount of any all other accrued and unpaid Borrower Obligations which are then required to be paid according to such subsection, including the expenses of the Lenders reimbursable under Section 12.04; and
(vii) seventh, unless a Termination Event or Incipient Termination Event has occurred and is continuing or would result therefrom, any remaining amounts to be paid to the Borrower; provided that if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Accrual Account.
(c) On each Settlement Date the Borrower (or the Servicer on its behalf) shall withdraw amounts on deposit in the Accrual Account and pay such amounts as provided follows in this Section 2.08. Any Collections not set aside for the following order of priority:
(i) first, to the Agent Account, to the extent then due and payable, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the Agent Account, to the payment of accrued and unpaid Borrower Obligations may be used by Yield which is then due and payable in respect of the Borrower for applicable Advances, pro rata based upon amounts due;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the purchase price for new Receivables under aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the Receivables Sale Agreement or for Agent Account, to the payment of any outstanding Advances then due and payable;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the Agent Account, to the payment of the Outstanding Principal Amount of all other Advances, together with amounts owing payable with respect thereto under Section 2.08(d). On 2.10, if any, pro rata;
(vi) sixth, to the Commitment Termination Date extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including the expenses of the Lenders reimbursable under Section 12.04; and
(vii) seventh, to be paid to the Borrower.
(d) If and to the extent a Funding Excess exists on each day thereafterany Business Day, the Borrower shall cause retain an amount equal to the Servicer to set aside and hold amount of such Funding Excess in trust for the Secured Parties all Collections received Accrual Account by no later than 11:00 a.m. (New York time) on such day (andthe immediately succeeding Business Day, if applicable, any additional amounts received or held which amount shall be applied by the Administrative Agent, in immediate repayment of the outstanding amount of Advances (together with amounts payable with respect thereto under Section 2.10).
(e) The Borrower for hereby irrevocably waives the payment right to direct the application of any accrued and unpaid Borrower Obligations) owed by all payments received from or on behalf of the Borrower, and the Borrower hereby irrevocably agrees that any and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections such payments shall be held applied by the Administrative Agent or its designee for application pursuant to in accordance with this Section 2.08.
(f) All payments of principal of the Advances and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. On Any such payment becoming due on a day other than a Business Day shall be payable on the next succeeding Business Day. Payments received at or prior to 1:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 1:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(g) Any and after all payments by the Commitment Termination Date Borrower hereunder shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, Charges or withholdings, excluding taxes imposed on or measured by the net income, gross receipts or franchise taxes of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized or by any political subdivisions thereof (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Borrower shall and shall cause the Servicer to, at be required by law to deduct any time upon the request Indemnified Taxes from time to time by (or pursuant to standing instructions from) the Administrative Agentin respect of any sum payable hereunder, (i) remit the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the Agent Account sum it would have received had no such deductions been made, (ii) the amounts set aside pursuant to the preceding sentenceBorrower shall make such deductions, and (iiiii) apply the Borrower shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction on amounts payable under this Section 2.08) paid by such amounts Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.
(h) Upon receipt of a notice in accordance with Section 2.08(d)7.03 of the Sale Agreement, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(c) or (d) (and in such case only to the extent of the funds so allocated), (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Commitment Termination Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by On each Business Day, the Administrative Agent shall allocate amounts on deposit in the Agent Account on such day and not previously allocated under this subsection (b) as follows, in the following order of priority:
(i) first, to be retained in the Agent Account and paid in accordance with clause (i) of the following subsection (c), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to clauses the terms hereof; provided, that, the sum of (i) the amounts retained pursuant to this clause first and (ii) the amounts paid pursuant to clause (i) of the following subsection (c) shall not exceed $100,000 in any calendar year;
(ii) second, to be retained in the Agent Account and paid in accordance with clause (ii) of the following subsection (c), an amount equal to the aggregate interest with respect to all outstanding Tranche A Advances and Tranche A Reimbursement Obligations then accrued and unpaid;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to be retained in the Agent Account and paid in accordance with clause (iii) of the following subsection (c), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to be retained in the Agent Account and paid in accordance with clause (vi) of the following subsection (c), an amount equal to the aggregate interest with respect to all outstanding Tranche B Revolving Credit Advances and Tranche B Reimbursement Obligations then accrued and unpaid;
(v) fifth, to be retained in the Agent Account, the amount of any cash collateral required to be deposited therein under Section 2.11;
(vi) sixth, the extent not already retained in the Agent Account in accordance with clause first, to be retained in the Agent Account and paid in accordance with clause (ix) of the following subsection (c), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(vii) seventh, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, all such remaining amounts to the extent not greater than the Outstanding Principal Amount to be retained in the Agent Account until paid in accordance with the following subsection (c) or all such conditions are satisfied;
(d)viii) beloweighth, to be retained in the Agent Account and paid in accordance with the applicable provisions of the following subsection (c), any Collections received by an amount equal to the Borrower or the Servicer shall be held in trust by the Servicer for the payment aggregate amount of any all other accrued and unpaid Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04; and
(ix) ninth, unless a Termination Event or Incipient Termination Event has occurred and is continuing, any remaining amounts on deposit in the Agent Account, to be paid to the Borrower Account (if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Agent Account until such time as provided all Borrower Obligations shall have been indefeasibly paid in full and this Section 2.08. Any Collections Agreement shall have been terminated).
(c) On each Business Day on which any Borrower Obligations are due for payment, the Administrative Agent shall withdraw amounts on deposit in the Agent Account and pay such amounts as follows in the following order of priority:
(i) first, to the extent then due and payable, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof; provided, that, the aggregate amount paid pursuant to this clause first in any calendar year shall not set aside for exceed $100,000;
(ii) second, if such Business Day is an Interest Payment Date, to the payment of accrued and unpaid Borrower Obligations may be used by interest which is then due and payable in respect of the Borrower for Tranche A Advances and Tranche A Reimbursement Obligations, pro rata based on the Commitments;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the payment of any outstanding Tranche A Advances and Tranche A Reimbursement Obligations with respect to amounts owing under drawn on Letters of Credit then due and payable, pro rata based on the Commitments; provided, that principal on Tranche A Advances shall be applied in the following order, to the payment of the Outstanding Principal Amount of Tranche A Advances, first, in respect of Swing Line Advances (provided, that if a Funding Excess exists and any outstanding Swing Line Advances were made in violation of the fourth sentence of Section 2.08(d2.01(b)(i). On , then such Swing Line Advance will be repaid after the Commitment Termination Date Revolving Credit Advances), and second, in respect of Tranche A Revolving Credit Advances, pro rata based on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections received on such day Commitments;
(andv) fifth, if applicableany of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Outstanding Principal Amount of all other Tranche A Advances and Tranche A Reimbursement Obligations, first, in respect of Swing Line Advances (provided, that if a Tranche A Funding Excess exists and any additional amounts received or held by outstanding Swing Line Advances were made in violation of the Borrower for fourth sentence of Section 2.01(b)(i), then such Swing Line Advance will be repaid after the Tranche A Revolving Credit Advances), second, in respect of Tranche A Reimbursement Obligations and third, in respect of Tranche A Revolving Credit Advances, pro rata based on the Commitments;
(vi) sixth, if such Business Day is an Interest Payment Date, to the payment of accrued and unpaid interest which is then due and payable in respect of the Tranche B Revolving Credit Advances and Tranche B Reimbursement Obligations, pro rata based on the Commitments;
(vii) seventh, to the payment of any accrued outstanding Tranche B Revolving Credit Advances and unpaid Borrower Tranche B Reimbursement Obligations with respect to amounts drawn on Letters of Credit then due and payable, pro rata based on the Commitments;
(viii) eight, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Outstanding Principal Amount of all other Tranche B Revolving Credit Advances and Tranche B Reimbursement Obligations; first, in respect of Tranche B Reimbursement Obligations and second, in respect of Tranche B Revolving Credit Advances, pro rata based on the Commitments;
(ix) owed by ninth, to the Borrower L/C Cash Collateral Account, the amount of any cash collateral required to be deposited therein under Section 2.11;
(x) tenth, to the extent then due and payable and not previously already paid by Borrower in accordance with clause (d) below; provided that if first above, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On and after the Commitment Termination Date the Borrower shall and shall cause the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) the Administrative Agent, (i) remit to the Agent Account the amounts set aside which are reimbursable pursuant to the preceding sentence, and (ii) apply such amounts in accordance with Section 2.08(d).terms hereof;
(cxi) Notwithstanding eleventh, to the provisions extent then due and payable, pro rata, to the payment of clause all other obligations of the Borrower accrued and unpaid hereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04; and
(bxii) abovetwelfth, if:to be paid to the Borrower Account.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Rexnord LLC)
Application of Collections; Time and Method of Payments. (a) Each Index Rate Advance (including Swing Line Advances) shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Index Rate Advance pursuant to subsections 2.08(csubsection (d)(iv) or (df) (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Commitment Termination Date (in which case such Index Rate Advance shall be payable in full). Each LIBOR Rate Advance shall mature, and be payable in full, on the earliest of (1) the date on which funds are allocated therefor pursuant to subsection (d)(v) or (f), (2) the last day of the LIBOR Period with respect thereto (unless such LIBOR Rate Advance is converted or continued in compliance with the terms hereof) and (3) the Commitment Termination Date (in which case such LIBOR Rate Advance shall be payable in full).
(b) Prior On each Business Day, the Servicer shall determine the Collections received on such day and shall set such Collections aside and hold them in trust for the benefit of the Administrative Agent, the Lenders and the Borrower until such Collections are either required to be deposited in the Agent Account pursuant to Section 8.05(d) or applied pursuant to Section 2.08(c), (d) or (e).
(c) On each Settlement Date prior to the Commitment Termination Date (Date, Collections held by the Servicer pursuant to Section 2.08(b) shall be paid by the Servicer into the Agent Account, and all such amounts, together with other amounts then held in the absence of any instruction or direction Agent Account, shall be distributed by the Administrative Agent pursuant in the following order of priority:
(i) first, to clauses (c) or (d)) below)the extent then due and payable, any Collections received by the Borrower or the Servicer shall be held in trust by the Servicer for pro rata, to the payment of any all Fees accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not set aside for through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, if such Settlement Date is also an Interest Payment Date, to the payment of accrued and unpaid Borrower Obligations may be used by interest which is then due and payable in respect of the Borrower for applicable Advances, pro rata, and to the payment of the purchase price for new Receivables under outstanding principal amount of any LIBOR Rate Advance maturing on such date pursuant to clause (2) of the Receivables Sale Agreement or for second sentence of Section 2.08(a);
(iii) third, to the payment of any amounts owing under Section 2.08(d). On outstanding Reimbursement Obligations, pro rata;
(iv) fourth, to the Commitment Termination Date extent then due and on each day thereafterpayable, the Borrower shall cause the Servicer pro rata, to set aside and hold in trust for the Secured Parties all Collections received on such day (and, if applicable, any additional amounts received or held by the Borrower for the payment of any all other obligations of the Borrower accrued and unpaid Borrower Obligationshereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 14.04; and
(v) owed by fifth, the remaining balance (if any) shall be paid to the Borrower and not previously paid by Borrower in accordance with clause Account.
(d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On each Settlement Date from and after the Commitment Termination Date, Collections held by the Servicer pursuant to Section 2.08(b) shall be paid by the Servicer into the Agent Account, and all such amounts, together with other amounts then held in the Agent Account, shall be distributed by the Administrative Agent in the following order of priority:
(i) first, to the extent then due and payable, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, if such Settlement Date is also an Interest Payment Date, to the payment of accrued and unpaid interest which is then due and payable in respect of the applicable Advances, pro rata;
(iii) third, to the payment of any outstanding Reimbursement Obligations, pro rata;
(iv) fourth, to the payment of the outstanding principal balance of the Advances which constitute Index Rate Advances, first, in respect of Swing Line Advances, and if no Swing Line Advances are outstanding, second, in respect of Revolving Credit Advances, pro rata;
(v) fifth, pro rata, to the payment of the outstanding principal balance of Advances which constitute LIBOR Rate Advances together with amounts payable with respect thereto under Section 2.10;
(vi) sixth, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 14.04; and
(vii) seventh, the remaining balance (if any) shall be paid to the Borrower Account.
(e) On each Interest Payment Date which is not also a Settlement Date, Collections held by the Servicer pursuant to Section 2.08(b) shall be paid by the Servicer into the Agent Account (to the extent necessary to pay the following obligations), and all such amounts, together with other amounts then held in the Agent Account, shall be distributed by the Administrative Agent to the Lenders, pro rata, in payment of accrued and unpaid interest which is then due and payable in respect of the applicable Advances, pro rata, and to the payment of the outstanding principal amount of any LIBOR Rate Advance maturing on such date pursuant to clause (2) of the second sentence of Section 2.08(a).
(f) If and to the extent a Funding Excess exists on any Business Day, the Borrower shall deposit an amount equal to the amount of such Funding Excess in the Agent Account by no later than 11:00 a.m. on the immediately succeeding Business Day, which amount shall be applied by the Administrative Agent first, in immediate repayment of the outstanding amount of Swing Line Advances, and if no Swing Line Advances are outstanding, second, in immediate repayment of the outstanding amount of Index Rate Advances, and third, in immediate repayment of the outstanding amount of LIBOR Rate Advances (together with amounts payable with respect thereto under Section 2.10).
(g) To the extent that on any Settlement Date or Interest Payment Date, as applicable, there are insufficient funds on deposit in the Agent Account to pay amounts due on such Settlement Date or Interest Payment Date, as the case may be, in respect of the matured portion of any Advances or any interest, Fees or any other amounts due and payable on such day by the Borrower hereunder, the Borrower shall cause the Servicer topay, at any time upon the request notice from time to time by (or pursuant to standing instructions from) the Administrative Agent, the amount of such insufficiency to the Administrative Agent in Dollars, in immediately available funds (for the account of the Administrative Agent, the applicable Lenders, Affected Parties or Indemnified Persons) not later than 11:00 a.m. (New York time) on such Settlement Date or Interest Payment Date, as applicable. Any such payment made on such date but after such time shall be deemed to have been made on, and interest shall continue to accrue and be payable thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or the Index Rate (in all other cases) until, the next succeeding Business Day.
(h) The Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Borrower, and the Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Administrative Agent in accordance with this Section 2.08.
(i) remit All payments of principal of the Advances and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. If any such payment becomes due on a day other than a Business Day, the maturity thereof will be extended to the Agent Account next succeeding Business Day (except as set forth in the amounts set aside pursuant definition of LIBOR Period) and interest thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or Index Rate (in all other cases) shall be payable during such extension. Payments received at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 2:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(j) Any and all payments by the Borrower hereunder shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, Charges or withholdings, excluding taxes imposed on or measured by the net income, gross receipts or franchise taxes of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized or by any jurisdiction in which such Affected Party is doing business (other than by reason of the transactions contemplated by this Agreement) or by any political subdivisions thereof, and in the case of an Affected Party which is an assignee of another Lender, any other taxes to which such Affected Party is subject with respect to this Agreement on the date on which it became a Lender to the preceding sentenceextent such taxes exceed the taxes to which the assigning Lender would be subject with respect to this Agreement (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Borrower shall be required by law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder, (i) the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, and (iiiii) apply such amounts the Borrower shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction on amounts payable under this Section 2.08(d)2.08) paid by such Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. The Borrower, however, shall not be obligated to make any payments under this Section 2.08(j) to any Affected Party to the extent that such Affected Party is exempt from all or any portion of the Indemnified Taxes but such Affected Party fails to timely provide the Borrower with the necessary forms to claim such exemption.
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 1 contract
Samples: Receivables Funding Agreement (Ak Steel Holding Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(c) or (d) (and in such case only to the extent of the funds so allocated), (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Commitment Termination Date (in which case such Advance shall be payable in full).
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses (c) or (d)) below)Date, any Collections proceeds of Borrower Collateral received by the Borrower or the Servicer shall be set aside and held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not required to be set aside for prior to the payment of accrued and unpaid Borrower Obligations Commitment Termination Date may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d)Agreement. On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections proceeds of Borrower Collateral received on such day (and, if applicable, any and an additional amounts received or held by the Borrower amount for the payment of any accrued and unpaid Borrower Obligations) Obligations owed by the Borrower and not previously paid by Borrower in accordance with clause (d) belowBorrower; provided that if the Administrative Agent has exercised its right to obtain exclusive control over delivered a Notice of Exclusive Control in accordance with the Collection Accounts and the Concentration Accountsterms hereof, all Collections proceeds of Borrower Collateral received by the Administrative Agent shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On and after the Commitment Termination Date the Borrower shall and shall cause the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) the Administrative Agent, (i) remit to the Agent Account the amounts set aside pursuant to the preceding sentence, and (ii) apply such amounts in accordance with Section 2.08(d).
(c) Notwithstanding On each Business Day on which any Borrower Obligations are due for payment, the provisions Borrower (and/or, if the Administrative Agent has delivered a Notice of clause Exclusive Control, the Administrative Agent to the extent that it has received proceeds of Borrower Collateral), shall apply all proceeds of Borrower Collateral then available in the following order of priority (bwhether such proceeds were set aside and held in trust in accordance with Section 2.08(b) aboveor otherwise):
(i) first, if:to the extent then due and payable, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, if such Business Day is a Settlement Date, to the payment of accrued and unpaid interest which is then due and payable in respect of the Advances and Reimbursement Obligations, pro rata based on the Commitments;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the payment of any outstanding Advances and Reimbursement Obligations solely with respect to amounts drawn on Letters of Credit then due and payable, pro rata based on the Commitments;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Outstanding Principal Amount of all other Advances and Reimbursement Obligations, first, in respect of Reimbursement Obligations and second, in respect of Revolving Credit Advances, pro rata based on the Commitments;
(vi) sixth, to the L/C Cash Collateral Account, the amount of any cash collateral required to be deposited therein under Section 2.11;
(vii) seventh, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04; and
(viii) eighth, to be paid to the Borrower (by deposit into an account designated by the Borrower in writing).
(d) If and to the extent a Borrowing Base Deficiency exists on any Business Day, the Borrower shall deposit an amount equal to the amount of such Borrowing Base Deficiency to an account designated by the Administrative Agent by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day, which amount shall be applied by the Administrative Agent in immediate repayment of the outstanding amount of Revolving Credit Advances.
(e) To the extent amounts held by the Administrative Agent or any Lender on any day are insufficient to pay amounts due on such day in respect of the matured portion of any Advances or any interest, Fees or any other amounts due and payable by the Borrower hereunder, the Borrower shall pay, upon notice from the Administrative Agent, the amount of such insufficiency to the Administrative Agent in Dollars, in immediately available funds (for the account of the Administrative Agent, the applicable Lenders, Affected Parties or Indemnified Persons) not later than 11:00 a.m. (New York time) on such day. Any such payment made on such date but after such time shall be deemed to have been made on, and interest shall continue to accrue and be payable thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or the Base Rate (in all other cases), until the next succeeding Business Day.
(f) The Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Borrower, and the Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Administrative Agent in accordance with this Section 2.08.
(g) All payments of principal of the Advances and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. If any such payment becomes due on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day and interest thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or Base Rate (in all other cases) shall be payable during such extension. Payments received at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 2:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(h) Any and all payments by the Borrower hereunder shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, Charges or withholdings, excluding (i) taxes imposed on or measured by the net income, gross receipts or franchise taxes of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized (or by any political subdivisions thereof) or is doing business other than solely as a result of this Agreement or any Related Document, (ii) in the case of a Lender, U.S. federal withholding taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance, Letter of Credit Obligations or other Outstanding Principal Amounts pursuant to a law in effect on the date on which such Lender acquires such interest in the Advance, Letter of Credit Obligations or other Outstanding Principal Amounts except to the extent that, pursuant to this Section, amounts with respect to such taxes were payable to such Lender’s assignor immediately before such Lender became a party hereto, (iii) taxes attributable to such Lender’s failure to comply with Section 2.10 and (iv) any withholding taxes imposed under FATCA (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Borrower shall be required by law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder, (x) the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the sum it would have received had no such deductions been made, (y) the Borrower shall make such deductions, and (z) the Borrower shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction on amounts payable under this Section 2.08) paid by such Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.
(i) Upon receipt of a notice in accordance with Section 7.03 of the Sale Agreement, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
(j) The Administrative Agent agrees that it will not deliver a Notice of Exclusive Control unless a Trigger Event has occurred. From and after the occurrence of a Trigger Event, the Administrative Agent may deliver a Notice of Exclusive Control in its sole and absolute discretion. Following the delivery of a Notice of Exclusive Control, the Administrative Agent will direct the applicable Collection Account Bank and/or Concentration Account Bank to deliver all available funds on deposit in each applicable Account to any account designated by the Administrative Agent. Any amounts received by the Administrative Agent may be applied by the Administrative Agent to Borrower Obligations that are then due and payable in accordance with the priority of payments set forth in this Section 2.08. If, on any day, the Administrative Agent receives any amounts in connection with the delivery of a Notice of Exclusive Control that are in excess of Borrower Obligations that are then due and owing, the Administrative Agent may in its sole and absolute discretion (x) retain from such amounts an amount equal to those Borrower Obligations (other than the Outstanding Principal Amount) that have accrued but are not then due and payable (such amounts shall be retained for application in accordance with the priority of payments set forth in this Section 2.08 on the next Settlement Date) and/or (y) if a Termination Event is continuing, retain Collections and other proceeds of Collateral in an amount necessary to cash collateralize 105% of the Borrower Obligations (or such lower amount as the Administrative Agent may designate). After giving effect to any retention pursuant to the immediately preceding sentence, the Administrative Agent shall pay any other amounts received by the Administrative Agent to an account designated by the Borrower.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Rexnord Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(cclause (iv) or (dv) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e), and (iii) the Facility Maturity Termination Date (in which case such Advance shall be payable in full).
(b) Prior On each Business Day, the Borrower (or the Servicer on its behalf) shall allocate amounts on deposit in the Concentration Account on such day and not previously allocated under this subsection (b) as follows, in the following order of priority:
(i) first, to be retained in the Concentration Account and paid in accordance with clause (i) of the following subsection (c), an amount equal to the Commitment Termination aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained in the Concentration Account and paid in accordance with clause (ii) of the following subsection (c), an amount equal to the aggregate Yield (which, in the case of Yield computed by reference to the CP Rate, shall be determined for such purpose using the CP Rate most recently determined by the applicable Administrator) with respect to all outstanding Advances then accrued and unpaid; provided that, at its option, the Borrower (or the Servicer on its behalf) may elect to retain the aggregate Yield anticipated to accrue through the following Settlement Date (and not previously set aside) and, once so set aside, no additional funds need be set aside pursuant to this clause (ii) unless in the absence interim any applicable Administrator provides an updated higher CP Rate;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to be deposited into the Concentration Account and paid in accordance with clause (iii) of the following subsection (c), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to be retained in the Concentration Account and paid, pro rata, to the Persons entitled thereto, an amount equal to all outstanding Advances which are then due and payable;
(v) fifth, if any instruction or direction by of the Administrative Agent pursuant conditions precedent set forth in Section 3.02 shall not be satisfied, all such remaining amounts not to clauses exceed the Outstanding Principal Amount to be retained in the Concentration Account until paid in accordance with the following subsection (c) or all such conditions are satisfied;
(d)vi) belowsixth, to be retained in the Concentration Account and paid in accordance with the applicable provisions of the following subsection (c), any Collections received by an amount equal to the Borrower or the Servicer shall be held in trust by the Servicer for the payment aggregate amount of any all other accrued and unpaid Borrower Obligations which are then required to be paid according to such subsection, including the expenses of the Lenders reimbursable under Section 12.04; and
(vii) seventh, unless a Termination Event or Incipient Termination Event has occurred and is continuing or would result therefrom, any remaining amounts to be paid to the Borrower Account; provided that if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Concentration Account.
(c) On each Settlement Date the Borrower (or the Servicer on its behalf) shall withdraw amounts on deposit in the Concentration Account and pay such amounts as provided follows in this Section 2.08. Any Collections not set aside for the following order of priority:
(i) first, to the Agent Account, to the extent then due and payable, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the Agent Account, to the payment of accrued and unpaid Borrower Obligations may be used by Yield which is then due and payable in respect of the Borrower for applicable Advances, pro rata based upon amounts due;
(iii) third, if the Servicer has been replaced as a result of the occurrence of an Event of Servicer Termination and such Servicer is not an Affiliate of the Parent, to the payment of the purchase price for new Receivables under aggregate accrued and unpaid Servicing Fees through such date payable to such replacement Servicer;
(iv) fourth, to the Receivables Sale Agreement or for Agent Account, to the payment of any outstanding Advances then due and payable, pro rata; provided that principal on Advances shall be applied in the following order, to the payment of the Outstanding Principal Amount of Advances, first, in respect of Swing Line Advances, and second, in respect of Revolving Credit Advances, pro rata;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the Agent Account, to the payment of the Outstanding Principal Amount of all other Advances, first, in respect of Swing Line Advances, and second, in respect of Revolving Credit Advances, together with amounts owing payable with respect thereto under Section 2.08(d). On 2.10, if any, pro rata;
(vi) sixth, to the Commitment Termination Date extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including the expenses of the Lenders reimbursable under Section 12.04; and
(vii) seventh, to be paid to the Borrower Account.
(d) If and to the extent a Funding Excess exists on each day thereafterany Business Day, the Borrower shall cause retain an amount equal to the Servicer to set aside amount of such Funding Excess in the Concentration Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day, which amount shall be applied by the Administrative Agent, first, in immediate repayment of the outstanding amount of Swing Line Advances, and hold in trust for the Secured Parties all Collections received on such day (andsecond, if applicableno Swing Line Advances are outstanding, in immediate repayment of the outstanding amount of Revolving Credit Advances (together with amounts payable with respect thereto under Section 2.10).
(e) The Borrower hereby irrevocably waives the right to direct the application of any additional amounts and all payments received from or held by on behalf of the Borrower, and the Borrower for the payment of hereby irrevocably agrees that any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections such payments shall be held applied by the Administrative Agent or its designee for application pursuant to in accordance with this Section 2.08.
(f) All payments of principal of the Advances and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. On Any such payment becoming due on a day other than a Business Day shall be payable on the next succeeding Business Day. Payments received at or prior to 1:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 1:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(g) Any and after all payments by the Commitment Termination Date Borrower hereunder shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, Charges or withholdings, excluding taxes imposed on or measured by the net income, gross receipts or franchise taxes of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized or by any political subdivisions thereof (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Borrower shall and shall cause the Servicer to, at be required by law to deduct any time upon the request Indemnified Taxes from time to time by (or pursuant to standing instructions from) the Administrative Agentin respect of any sum payable hereunder, (i) remit the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the Agent Account sum it would have received had no such deductions been made, (ii) the amounts set aside pursuant to the preceding sentenceBorrower shall make such deductions, and (iiiii) apply the Borrower shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction on amounts payable under this Section 2.08) paid by such amounts Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.
(h) Upon receipt of a notice in accordance with Section 2.08(d)7.03 of the Sale Agreement, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
(c) Notwithstanding the provisions of clause (b) above, if:
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earliest earlier of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(cclause (v) or of subsection (dc) below (and in such case only to the extent of the funds so allocated), and (ii) the date when payable pursuant to subsection 2.08(e)Commitment Termination Date, and (iii) the Facility Maturity Date (in which case such Advance shall be payable in full); provided that if the Commitment Termination Date has occurred pursuant to clause (b) of the definition thereof and no Termination Event has occurred and is continuing, clause (i) of this paragraph (a) shall apply.
(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses (c) or (d)) below)Date, any Collections received by the Borrower or the Servicer shall be set aside and held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08. Any Collections not required to be set aside for prior to the payment of accrued and unpaid Borrower Obligations Commitment Termination Date may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d)Agreement. On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections received on such day (and, if applicable, any and an additional amounts received or held by the Borrower amount for the payment of any accrued and unpaid Borrower Obligations) Obligations owed by the Borrower and not previously paid by Borrower in accordance with clause (d) belowBorrower; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08. On and after the Commitment Termination Date Date, the Borrower shall and shall cause the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) the Administrative Agent, Agent (i) remit to the Agent Account Administrative Agent’s account the amounts set aside pursuant to the preceding sentence, and (ii) apply such amounts in accordance with this Section 2.08(d)2.08.
(c) Notwithstanding On each Settlement Date, each Interest Payment Date, and, if directed by any Group Agent, on each Business Day after the provisions occurrence of clause any Termination Event, the Borrower shall (or cause the Servicer to) withdraw amounts on deposit in the Collection Accounts, and pay such amounts, together with those additional amounts and those amounts received into the Collection Accounts that were set aside pursuant to paragraph (b) above, as follows in the following order of priority; provided that if the Administrative Agent shall have exercised its right to obtain exclusive control over the Collection Accounts, then the Administrative Agent shall disburse such amounts in accordance with this paragraph (c):
(i) first, to the extent then due and payable, all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof to the Administrative Agent; provided, that, the aggregate amount paid pursuant to this clause (i) in any calendar year shall not exceed $100,000;
(ii) second, if such day is an Interest Payment Date, to each Group Agent for the payment of accrued and unpaid interest for the applicable Lender Group which is then due and payable in respect of the applicable Advances, pro rata among the Lender Groups based on the amount of interest payable to the Lenders at such time;
(iii) third, to the Servicer for the payment of the Servicing Fee due and payable as of such date;
(iv) fourth, if such day is a Settlement Date and no Termination Event has occurred and is continuing, to each Group Agent for the payment of accrued and unpaid Fees for the applicable Lender Group which are then due and payable, pro rata among the Lender Groups based on the amount of Fees payable to the Group Agents at such time;
(v) fifth, (x) first, if and to the extent a Funding Excess exists on such day, to each Group Agent to repay the Advances in an amount equal to the amount of such Funding Excess, which repayment shall be made to each Group Agent pro rata in accordance with the Lender Group Percentages (together with amounts payable with respect thereto under Section 2.10), and (y) second, if:, after giving effect to any repayment made pursuant to the previous clause (x), any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to each Group Agent for the payment of the portion of the Outstanding Principal Amount of all Advances funded by its Lender Group, together with amounts payable with respect thereto under Section 2.10, if any, pro rata among the Lender Groups based on the amount of the Advances payable to each Lender Group at such time;
(vi) sixth, if such day is a Settlement Date and any Termination Event has occurred and is continuing, to each Group Agent for the payment of accrued and unpaid Fees for the applicable Lender Group which are then due and payable, pro rata among the Lender Groups based on the amount of Fees payable to the Group Agents at such time;
(vii) seventh, to the extent then due and payable and not already paid in accordance with clause (i) of this subsection (c) above, to the Administrative Agent for the payment of all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;
(viii) eighth, to the extent then due and payable, pro rata, to each Group Agent for the payment of all other obligations (other than the principal amount of any Advances unless the Commitment Termination Date has occurred or a Termination Event has occurred and is continuing) of the Borrower accrued and unpaid hereunder for the applicable Lender Group, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04, based on the amount of such obligations payable to each Lender at such time; and
(ix) ninth, to be paid to the Borrower. Notwithstanding the foregoing, at any time the Borrower is required to repay Advances pursuant to paragraph (d) below and such day is not a day on which distributions would otherwise be made pursuant to this paragraph (c), the Borrower may withdraw funds from the Collection Accounts in order to make such repayment.
(d) If and to the extent a Funding Excess exists on any Business Day, the Borrower shall repay the Advances in an amount equal to the amount of such Funding Excess by no later than 2:00 p.m. (New York time) on the immediately succeeding Business Day, which repayment shall be made to each Group Agent pro rata in accordance with the Lender Group Percentages (together with amounts payable with respect thereto under Section 2.10).
(e) At all times after the Administrative Agent shall have exercised its right to obtain exclusive control over the Collection Accounts, the Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Borrower, and the Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Administrative Agent and the Group Agents in accordance with this Section 2.08. In the event the Borrower is required to make a payment pursuant to paragraph (d) above at a time when the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the required payment date is not a day on which distributions would otherwise be made pursuant to paragraph (c) above, the Administrative Agent shall withdraw funds from the Collection Accounts to the extent available, in order to make such required repayment.
(f) All payments of principal of the Advances and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. If any such payment becomes due on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day and interest thereon at the LIBOR Rate (in the case of LIBOR Rate Advances), at the CP Rate (in the case of CP Rate Advances) or the Index Rate (in all other cases) shall be payable during such extension. Payments received at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 2:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.
(g) Any and all payments by the Borrower hereunder shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, Charges or withholdings, excluding all Excluded Taxes (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Borrower shall be required by law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder, (i) the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08) the Affected Party entitled to receive any such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, and (iii) the Borrower shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Administrative Agent and each Group Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction on amounts payable under this Section 2.08) paid by such Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.
(h) Upon receipt of a notice in accordance with Section 7.03 of the Sale Agreement, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
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Samples: Receivables Funding and Administration Agreement (Ryerson Inc.)
