Application of Collections; Time and Method of Payments. (a) On each Business Day, the Purchaser Agent shall allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on deposit in the Agent Account on such day and not previously allocated under this subsection (a) as follows, in the following order of priority: (i) first, to be retained in the Agent Account for payment in accordance with clause (i) of the following subsection (b), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent and the Administrative Agent which are reimbursable pursuant to the terms hereof; (ii) second, to be retained in the Agent Account for payment in accordance with clause (ii) of the following subsection (b), an amount equal to the aggregate Daily Yield accrued and unpaid through such date; (iii) third, to be retained in the Agent Account for payment in accordance with clause (iii) of the following subsection (b), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer; (iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred: (A) first, to be paid on such Business Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and (B) second, to be retained in the Agent Account as Cash Collateral; (v) fifth, 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 Capital Investment to be retained in the Agent Account until paid in accordance with the following subsection (b) or all such conditions are satisfied; (vi) sixth, to be retained in the Agent Account and paid in accordance with the applicable provisions of the following subsection (b), an amount equal to the aggregate amount of all other accrued and unpaid Seller Obligations which are then required to be paid according to such subsection, including, without limitation, the expenses of the Purchasers reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above; and (vii) seventh, 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 Seller Account (if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Agent Account). (b) On each Settlement Date until the Termination Date, the Purchaser Agent shall, except as otherwise provided in Section 2.11, 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, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent which are reimbursable pursuant to the terms hereof; (ii) second, to the payment of accrued and unpaid Daily Yield, pro rata; (iii) third, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer; provided, that if the Servicer owes the Seller any amounts, such amounts shall be set-off from the Servicing Fees owed and only the net amount of Servicing Fees shall be paid; (iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred: (A) first, to be paid on such Settlement Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any until the Capital Investment of the Revolving Purchaser Interest is reduced to zero and (B) second, to be retained in the Agent Account as Cash Collateral; (v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, pro rata; (vi) sixth, to the extent then due and payable, pro rata, to the payment of all accrued and unpaid Seller Obligations which are then required to be paid hereunder, including, without limitation, the expenses of the Purchasers reimbursable under Section 12.04; and (vii) seventh, to be paid to the Seller Account. (c) If and to the extent a Purchase Excess exists on any Business Day and the amounts on deposit in the Agent Account are not sufficient to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv), the Seller shall (i) deposit an amount equal to the amount of such Purchase 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 Purchaser Agent as an immediate reduction of Capital Investment in respect of the Revolving Purchaser Interest (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day. (d) 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 any Purchase Excess, any matured Daily Yield, Fees or any other amounts due and payable by the Seller hereunder, the Seller shall pay, upon notice from the Purchaser Agent, the amount of such insufficiency to the Purchaser Agent in Dollars, in immediately available funds (for the account of the Purchaser Agent, the applicable Purchasers, 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 Daily Yield shall continue to accrue and be payable thereon at the Daily Yield Rate, until the next succeeding Business Day. (e) The Seller hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Seller, and the Seller hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Agent in accordance with this Section 2.08. (f) All payments in reduction of Capital Investment and all payments of Daily Yield, Fees and other amounts payable by the Seller 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 Daily Yield shall accrue thereon at the Daily Yield Rate 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 Seller 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 or in which it is doing business other than solely as a result of the transactions contemplated hereunder or any Branch Profits Tax imposed by the U.S. or any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Seller 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 Seller shall make such deductions, and (iii) the Seller 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 Seller shall furnish to the Purchaser Agent the original or a certified copy of a receipt evidencing payment thereof. The Seller 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) Prior to the receipt of any payments hereunder each foreign Purchaser shall provide Agent, Purchaser Agent and Seller with two properly executed forms W-8BEN claiming a full exemption from U.S. withholding tax. (i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts to the Seller. (j) Upon receipt of a notice in accordance with Section 7.03 of the Transfer Agreement, the Purchaser Agent shall, if such amounts have not been applied to the Seller Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Univision Communications Inc)
Application of Collections; Time and Method of Payments. (a) On each Business Day, the Purchaser Agent shall allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on deposit in the Agent Account on such day and not previously allocated under this subsection (a) as follows, in the following order of priority:
(i) first, to be retained in the Agent Account for payment in accordance with clause (i) of the following subsection (b), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent and the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained in the Agent Account for payment in accordance with clause (ii) of the following subsection (b), an amount equal to the aggregate Daily Yield accrued and unpaid through such date;
(iii) third, to be retained in the Agent Account for payment in accordance with clause (iii) of the following subsection (b), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(A) first, to be paid on such Business Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and
(B) second, to be retained in the Agent Account as Cash Collateral;
(v) fifth, 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 Capital Investment to be retained in the Agent Account until paid in accordance with the following subsection (b) or all such conditions are satisfied;
(vi) sixth, to be retained in the Agent Account and paid in accordance with the applicable provisions of the following subsection (b), an amount equal to the aggregate amount of all other accrued and unpaid Seller Obligations which are then required to be paid according to such subsection, including, without limitation, the expenses of the Purchasers reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above; and
(vii) seventh, 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 Seller Account (if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Agent Account).
(b) On each Settlement Date until the Termination Date, the Purchaser Agent shall, except as otherwise provided in Section 2.11, 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, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the payment of accrued and unpaid Daily Yield, pro rata;
(iii) third, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer; provided, that if the Servicer owes the Seller any amounts, such amounts shall be set-off from the Servicing Fees owed and only the net amount of Servicing Fees shall be paid;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(A) first, to be paid on such Settlement Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any until the Capital Investment of the Revolving Purchaser Interest is reduced to zero and
(B) second, to be retained in the Agent Account as Cash Collateral;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfied, to the payment of the Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, pro rata;
(vi) sixth, to the extent then due and payable, pro rata, to the payment of all accrued and unpaid Seller Obligations which are then required to be paid hereunder, including, without limitation, the expenses of the Purchasers reimbursable under Section 12.04; and
(vii) seventh, to be paid to the Seller Account.
(c) If and to the extent a Purchase Excess exists on any Business Day and the amounts on deposit in the Agent Account are not sufficient to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv), the Seller shall (i) deposit an amount equal to the amount of such Purchase 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 Purchaser Agent as an immediate reduction of Capital Investment in respect of the Revolving Purchaser Interest (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day.
(d) 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 any Purchase Excess, any matured Daily Yield, Fees or any other amounts due and payable by the Seller hereunder, the Seller shall pay, upon notice from the Purchaser Agent, the amount of such insufficiency to the Purchaser Agent in Dollars, in immediately available funds (for the account of the Purchaser Agent, the applicable Purchasers, 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 Daily Yield shall continue to accrue and be payable thereon at the Daily Yield Rate, until the next succeeding Business Day.
(e) The Seller hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Seller, and the Seller hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Agent in accordance with this Section 2.08.
(f) All payments in reduction of Capital Investment and all payments of Daily Yield, Fees and other amounts payable by the Seller 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 Daily Yield shall accrue thereon at the Daily Yield Rate 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 Seller 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 (all such taxes, levies, imposts, deductions, Charges and withholdings, other than Excluded Taxes, being “Indemnified Taxes”), 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 in which it is doing business other than solely as a result of the transactions contemplated hereunder or hereunder, (ii) any Branch Profits Tax branch profits tax imposed by the U.S. or U.S., (iii) any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement and (iv) any U.S. withholding tax which is imposed as a result of the Affected Party’s failure to provide the forms required under Section 2.08(h) hereof, if any, or to comply with FATCA (such non-excluded taxestaxes being, levies, imposts, deductions, Charges and withholdings being “Indemnified Excluded Taxes”). If the Seller 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 Seller shall make such deductions, and (iii) the Seller 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 Seller shall furnish to the Purchaser Agent the original or a certified copy of a receipt evidencing payment thereof. The Seller 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) Prior to the receipt of any payments hereunder each foreign Purchaser shall provide Agent, Purchaser Agent and Seller with two properly executed forms W-8BEN claiming a full exemption from U.S. withholding tax.
(i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts to the Seller.
(j) Upon receipt of a notice in accordance with Section 7.03 of the Transfer Agreement, the Purchaser Agent shall, if such amounts have not been applied to the Seller Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Univision Holdings, Inc.)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earlier of (i) the date funds are allocated to such Advance pursuant to clause (iv)(A) or (v) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the Facility Termination Date (in which case such Advance shall be payable in full).
(b) On each Business Day, the Purchaser Agent Borrower (or the Servicer on its behalf) shall allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on deposit in the Agent Accrual Account on such day and not previously allocated under this subsection (ab) as follows, in the following order of priority:
(i) first, to be retained in the Agent Accrual Account for payment and paid in accordance with clause (i) of the following subsection (bc), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent and the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained in the Agent Accrual Account for payment and paid in accordance with clause (ii) of the following subsection (bc), an amount equal to the aggregate Daily 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 unpaid; provided that, at its option, the Borrower (or the Servicer on its behalf) may elect 727159853 10435078 11 to retain the aggregate Yield anticipated to accrue through such datethe 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 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 retained in deposited into the Agent Accrual Account for payment and paid in accordance with clause (iii) of the following subsection (bc), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to the such replacement Servicer;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(A) first, to be paid on such Business Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and
(B) second, to be retained in the Agent Accrual Account as Cash Collateraland 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 of the conditions precedent set forth in Section 3.02 shall not be satisfied, all such remaining amounts not to exceed the extent not greater than the Capital Investment Outstanding Principal Amount to be retained in the Agent Accrual Account until paid in accordance with the following subsection (bc) or all such conditions are satisfied;
(vi) sixth, to be retained in the Agent Accrual Account and paid in accordance with the applicable provisions of the following subsection (bc), an amount equal to the aggregate amount of all other accrued and unpaid Seller Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, including the expenses of the Purchasers Lenders reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above12.04; and
(vii) seventh, unless a Termination Event or Incipient Termination Event has occurred and is continuingcontinuing or would result therefrom, any remaining amounts on deposit in the Agent Account, to be paid to the Seller Account (Borrower; provided that if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Agent Accrual Account).
(bc) On each Settlement Date until the Termination Date, Borrower (or the Purchaser Agent shall, except as otherwise provided in Section 2.11, Servicer on its behalf) shall withdraw amounts on deposit in the Agent Accrual Account and pay such amounts as follows 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 Purchaser Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the Agent Account, to the payment of accrued and unpaid Daily YieldYield which is then due and payable in respect of the applicable Advances, pro ratarata 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 the such replacement Servicer; provided, that if the Servicer owes the Seller any amounts, such amounts shall be set-off from the Servicing Fees owed and only the net amount of Servicing Fees shall be paid;727159853 10435078 12
(iv) fourth, an amount equal to any Purchase Excess if be retained in the Facility Termination Date has not occurred:
Accrual Account and paid (A) first, if required pursuant to be paid on such Settlement Day Section 2.02(c)(v), in reduction of Capital Investment of an amount sufficient to reduce the Revolving Purchaser Interest, aggregate Accordion Advanced Amount (ratably according to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10each Lender’s Accordion Advanced Amount, if any any) until the Capital Investment of the Revolving Purchaser Interest such amount is reduced to zero and
and (B) second, in an amount equal to be retained in the Agent Account as Cash Collateralall outstanding Advances (ratably according to each Lender’s outstanding Advances, if any) which are 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 Capital InvestmentOutstanding Principal Amount of all other Advances, together with amounts payable with respect thereto under Section 2.10, if any, pro rata;
(vi) sixth, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid Seller Obligations which are then required to be paid hereunder, including, without limitation, including the expenses of the Purchasers Lenders reimbursable under Section 12.04; and
(vii) seventh, to be paid to the Seller AccountBorrower.
(cd) If and to the extent a Purchase Funding Excess exists on any Business Day and the amounts on deposit in the Agent Account are not sufficient to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv)Day, the Seller Borrower shall (i) deposit retain an amount equal to the amount of such Purchase Funding Excess in the Agent Accrual 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 Purchaser Agent as an Administrative Agent, in immediate reduction of Capital Investment in respect repayment of the Revolving Purchaser Interest outstanding amount of Advances (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day.
(d) 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 any Purchase Excess, any matured Daily Yield, Fees or any other amounts due and payable by the Seller hereunder, the Seller shall pay, upon notice from the Purchaser Agent, the amount of such insufficiency to the Purchaser Agent in Dollars, in immediately available funds (for the account of the Purchaser Agent, the applicable Purchasers, 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 Daily Yield shall continue to accrue and be payable thereon at the Daily Yield Rate, until the next succeeding Business Day).
(e) The Seller Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the SellerBorrower, and the Seller Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Administrative Agent in accordance with this Section 2.08.
(f) All payments in reduction of Capital Investment principal of the Advances and all payments of Daily Yieldinterest, Fees and other amounts payable by the Seller Borrower hereunder shall be made in Dollars, in immediately available funds. If any Any such payment becomes becoming due on a day other than a Business Day, the maturity thereof will Day shall be extended to payable on the next succeeding Business Day and Daily Yield shall accrue thereon at the Daily Yield Rate shall be payable during such extensionDay. Payments received at or prior to 2:00 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 2:00 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 Seller 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 or in which it is doing business other than solely as a result of the transactions contemplated hereunder or any Branch Profits Tax imposed by the U.S. or any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Seller Borrower shall be required by law to deduct or withhold any Indemnified Taxes from or in respect of any 727159853 10435078 13 sum payable hereunder, (i) 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 Seller Borrower shall make such deductionsdeductions or withholdings, and (iii) the Seller 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 Indemnified Taxes, the Seller Borrower shall furnish to the Purchaser Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Seller 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) Prior to the receipt of any payments hereunder each foreign Purchaser shall provide Agent, Purchaser Agent and Seller with two properly executed forms W-8BEN claiming a full exemption from U.S. withholding tax.
(i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts to the Seller.
(j) Upon receipt of a notice in accordance with Section 7.03 of the Transfer Sale Agreement, the Purchaser Administrative Agent shall, if such amounts have not been applied to the Seller Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Application of Collections; Time and Method of Payments. (a) The collection of the Receivables shall be administered by the Servicer in accordance with the Servicing Agreement.
(b) On each Business Day, (x) the Purchaser Borrower (or the Servicer on behalf of the Borrower) or (y) if the Administrative Agent has terminated the Borrower’s and the Servicer’s rights to direct disposition of funds in the Collection Account following the occurrence of an Account Control Event, the Administrative Agent, shall allocate (or, in the case of Section 2.08(a)(ivSections 2.8(b)(iv) and (b)(vii), apply) amounts on deposit in the Agent Collection Account on such day or other Specified Account and not previously allocated (or applied) under this subsection (ab) as follows, in the following order of priority:
(i) first, to be retained set aside and held in trust in the Agent Specified Account for payment in accordance with clause (i) of the following subsection (bc), an amount equal to the aggregate Fees and LC Lender Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent and the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained set aside and held in trust in the Agent Specified Account for payment in accordance with clause (ii) of the following subsection (bc), an amount equal to the aggregate Daily Yield interest with respect to all outstanding Advances then accrued and unpaid through such dateunpaid;
(iii) third, to be retained set aside and held in trust in the Agent Specified Account for payment in accordance with clause (iii) of the following subsection (bc), an amount equal to the aggregate Servicer Fees accrued and unpaid Servicing Fees through such date payable to the Servicerdate;
(iv) fourth, an amount equal to any Purchase Funding Excess if in the Facility Termination Date has not occurred:
following order of priority: (A1) first, to be paid on such Business Day to the Swing Line Lender, in reduction order to repay Swing Line Advances, until the outstanding principal balance of Capital Investment the Swing Line Advances is reduced to zero, (2) second to be paid, pro rata, to the Lenders, in order to repay Revolving Credit Advances, until the outstanding principal balance of the Revolving Purchaser Interest, Credit Advances is reduced to the Purchasers ratably based on the amount of their respective Capital Investmentzero, together with any amounts payable with respect thereto under Section 2.102.15, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and
and (B3) secondthird, to be retained in the Agent Specified Account as Cash Collateralor deposited in the LC Collateral Account, in either such case, for the benefit of the LC Lenders and the Lenders, until the aggregate amount retained in the Specified Account or the LC Collateral Account pursuant to this clause (iv) (and remaining on deposit) is equal to the LC Deposit Amount;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 3.2 shall not be satisfied, all such remaining amounts (to the extent not greater than the Capital Investment Outstanding Principal Amount) to be retained in the Agent Specified Account until paid in accordance with the following subsection (bc) or all such conditions are satisfied;
(vi) sixth, to be retained in the Agent Specified Account and paid for payment in accordance with the applicable provisions of the following subsection (bc), an amount equal to the aggregate amount of all other accrued and unpaid Seller Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, including the expenses of the Purchasers Lenders reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above12.4; and
(vii) seventh, unless to be retained in the Specified Account to the extent that the amounts set aside and held in trust therein pursuant to clauses (i), (ii) and (iii) above are less than the Required Minimum Balance.
(viii) eighth, (1) if a Termination Event or Incipient Termination Event has occurred and is continuingcontinuing or the Facility Maturity Date shall have occurred, any remaining amounts on deposit shall be retained in the Agent AccountSpecified Account for payment in accordance with the applicable provisions of the following subsection (c) or (2) otherwise, to be paid (A) released to the Seller Account Borrower so long as no Funding Excess would result therefrom, in which case the Borrower shall be permitted to use such amounts to purchase additional Receivables or make a distribution on its Membership Interest in accordance with Section 5.3(h) or (B) if a Termination Event or Incipient Termination Event has occurred and is continuingFunding Excess would result therefrom, such amounts shall remain retained in the Agent AccountSpecified Account as Cash Collateral (but only to the extent necessary to prevent such Funding Excess from resulting).
(bc) On (1) each Business Day following the occurrence of the Facility Maturity Date and (2) each Settlement Date until the Termination Date, (x) the Purchaser Borrower (or the Servicer on behalf of the Borrower) or (y) if the Administrative Agent shallhas terminated the Borrower’s and the Servicer’s rights to direct disposition of funds in the Collection Account following the occurrence of an Account Control Event, except as otherwise provided in Section 2.11the Administrative Agent, shall withdraw amounts on deposit in the Agent Specified Account (including any amounts that were retained therein in accordance with subsection (b) above), and pay such amounts, together with any other amounts on deposit in the Specified Account, as follows in the following order of priority:
(i) first, to the extent then due and payable, pro rata, to the payment of all Fees and LC Lender Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the payment of accrued and unpaid Daily Yieldinterest in respect of the Advances, pro rata;
(iii) third, to the payment of the aggregate accrued and unpaid Servicing Servicer Fees through such date payable to the Servicer; provided, that if the Servicer owes any amounts to the Seller any amountsBorrower, such owed amounts shall be set-off from the Servicing Servicer Fees so owed and only the net amount of Servicing Servicer Fees shall be paid;
(iv) fourth, an amount equal to any Purchase Funding Excess if in the Facility Termination Date has not occurred:
following order of priority: (A1) first, paid to be paid on such Settlement Day the Swing Line Lender, in reduction order to repay the Swing Line Advances, until the outstanding principal balance of Capital Investment the Swing Line Advances is reduced to zero, (2) second paid, pro rata, to the Lenders, in order to repay Revolving Credit Advances, until the outstanding principal balance of the Revolving Purchaser Interest, Credit Advances is reduced to the Purchasers ratably based on the amount of their respective Capital Investmentzero, together with any amounts payable with respect thereto under Section 2.102.15, if any until the Capital Investment of the Revolving Purchaser Interest is reduced to zero and
any, and (B3) secondthird, to be retained in the Agent Specified Account as Cash Collateralor deposited in the LC Collateral Account, in either case, for the benefit of the LC Lenders and the Lenders, until the aggregate amount retained in the Specified Account or the LC Collateral Account pursuant to this clause (iv) (and remaining on deposit) is equal to the LC Deposit Amount;
(v) fifth, if (A) the Facility Maturity Date has occurred or any Termination Event or Incipient Termination Event has occurred and is continuing and (B) any Revolving Credit Advances or Swing Line Advances remain outstanding, (1) first, to the Swing Line Lender, in order to repay the Swing Line Advances, until the outstanding principal balance of the Swing Line Advances is reduced to zero and (2) second, to the Lenders, pro rata, in order to repay Revolving Credit Advances, until the outstanding principal balance of the Revolving Credit Advances is reduced to zero, together with any amounts payable with respect thereto under Section 2.15, if any;
(vi) sixth, if (A) the Facility Maturity Date has occurred or any Termination Event or Incipient Termination Event has occurred and is continuing and (B) the LC Participation Amount is greater than $0, to the LC Collateral Account, for the benefit of the LC Lenders and the Lenders, until the amount on deposit in the LC Collateral Account is equal to the LC Deposit Amount;
(vii) seventh, if any of the conditions precedent set forth in Section 3.02 3.2 shall not be satisfied, all such remaining amounts shall be (1) first, paid to the payment Swing Line Lender, in order to repay Swing Line Advances, until the outstanding principal balance of the Capital InvestmentSwing Line Advances is reduced to zero, (2) second, paid, pro rata, to the Lenders, in order to repay Revolving Credit Advances, until the outstanding principal balance of the Revolving Credit Advances is reduced to zero, together with any amounts payable with respect thereto under Section 2.102.15, if anyapplicable and (3) third, pro ratadeposited in the LC Collateral Account, for the benefit of the LC Lenders and the Lenders, until the amount on deposit in the LC Collateral Account is equal to the LC Deposit Amount;
(viviii) sixtheighth, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid Seller Obligations which are then required to be paid hereunder, including, without limitation, the expenses of the Purchasers Lenders reimbursable under Section 12.04; and12.4;
(viiix) seventhninth, to the payment of any other Borrower Obligations which are then required to be paid;
(x) tenth, to be paid (1) released to the Seller Account.
(c) If and Borrower so long as no Funding Excess would result therefrom, in which case the Borrower shall be permitted to the extent use such amounts to purchase additional Receivables or make a Purchase Excess exists distribution on any Business Day and the amounts on deposit in the Agent Account are not sufficient to eliminate such Purchase Excess its Membership Interest in accordance with Section 2.08(a)(iv5.3(h) or (2) if a Funding Excess would result therefrom, deposited (or retained) in the Specified Account as Cash Collateral (but only to the extent necessary to prevent such Funding Excess from resulting).
(d) In the event that, on any Business Day, a Funding Excess exists after giving effect to the application of amounts pursuant to Sections 2.8(b) or (c), as applicable, on such Business Day, the Seller Borrower shall (i) deposit an amount equal to the amount of such Purchase Funding Excess in the Agent Specified 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 Purchaser Administrative Agent as an immediate reduction of Capital Investment in respect of the Revolving Purchaser Interest (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to on such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business DayDay in accordance with Section 2.8(b)(iv).
(de) To the extent that amounts on deposit in the Agent Account applied pursuant to Sections 2.8(b) or (c), as applicable, on any day are insufficient to pay amounts due on such day in respect of (or as a result of) the matured portion of any Purchase ExcessAdvances or any interest, any matured Daily YieldFees, LC Lender Fees or any other amounts due and payable by the Seller Borrower hereunder, the Seller Borrower shall pay, upon written notice from the Purchaser Administrative Agent, the amount of such insufficiency to the Purchaser Administrative Agent in Dollars, in immediately available funds (for the account of the Purchaser Administrative Agent, the applicable PurchasersLenders, 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 Daily Yield interest shall continue to accrue and be payable thereon at the Daily Yield RateLIBOR Rate (in the case of LIBOR Rate Advances) or the Index Rate (in all other cases) until, until the next succeeding Business Day.
(e) The Seller hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Seller, and the Seller hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Agent in accordance with this Section 2.08.
(f) All payments in reduction of Capital Investment principal of the Advances, all required deposits into the LC Collateral Account and all payments of Daily Yieldinterest, Fees and other amounts payable by the Seller 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 Daily Yield shall accrue interest thereon at the Daily Yield 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.
(g) Any In the event that the amount on deposit in the LC Collateral Account exceeds the LC Deposit Amount on any Business Day (after giving effect to any allocations to, and all payments by withdrawals from, the Seller hereunder LC Collateral Account on such Business Day), the Administrative Agent 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 or in which it is doing business other than solely as a result of the transactions contemplated hereunder or any Branch Profits Tax imposed by the U.S. or any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Seller 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 release an amount equal to such excess, to be applied pursuant to this Section 2.8 as a Collection received during the sum it would have received had no Settlement Period in which such deductions been made, (ii) release occurs. In the Seller shall make such deductions, and (iii) event that any LC Lender Fees are not paid by the Seller 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 TaxesBorrower when due, the Seller shall furnish Administrative Agent may withdraw amounts from the LC Collateral Account in order to the Purchaser Agent the original or pay such LC Lender Fees (so long as a certified copy of a receipt evidencing payment thereof. The Seller shall indemnify any Affected Party Funding Excess would not result 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 assertedwithdrawal).
(h) Prior In the event that any amount is owed pursuant to the receipt of any payments hereunder each foreign Purchaser shall provide Agent, Purchaser Agent and Seller with two properly executed forms W-8BEN claiming this Section 2.8 to an LC Lender that is not a full exemption from U.S. withholding tax.
(i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts party to the Seller.
(j) Upon receipt of a notice in accordance with Section 7.03 of the Transfer this Credit Agreement, the Purchaser Agent shall, if Borrower shall pay (or cause the Servicer to pay) such amounts have not been applied amount to the Seller Obligations, segregate Administrative Agent (for the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivablesbenefit of such LC Lender).
Appears in 1 contract
Samples: Credit and Security Agreement (Alpha Natural Resources, Inc.)
Application of Collections; Time and Method of Payments. (a) On each Business Day, the Purchaser Administrative Agent shall allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on deposit in the Agent Account Accounts on such day and not previously allocated under this subsection (a) as follows, in the following order of priority:
(i) first, to be retained in the applicable Agent Account for payment payment, in accordance with clause (i) of the following subsection (b), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent and the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained in the applicable Agent Account for payment in accordance with clause (ii) of the following subsection (b), an amount equal to the aggregate Daily Yield accrued and unpaid through such date;
(iii) third, to be retained in the applicable Agent Account for payment in accordance with clause (iii) of the following subsection (b), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(Adetermined after giving effect to any Reinvestment Purchase to be made pursuant to Section 2.01(a) first, out of funds deemed to have been distributed to Seller in connection with such Reinvestment Purchase) to be paid on such Business Day in reduction of Capital Investment of the Revolving Purchaser InterestInvestment, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and
(B) second, to be retained in the Agent Account as Cash Collateral;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfiedsatisfied as of such Business Day, all such remaining amounts to the extent not greater than the Capital Investment to be retained in the applicable Agent Account until paid in accordance with the following subsection (b) or all such conditions are satisfied;
(vi) sixth, to be retained in the applicable Agent Account and paid in accordance with the applicable provisions of the following subsection (b), an amount equal to the aggregate amount of all other accrued and unpaid Seller Obligations which are then required to be paid according to such subsectionpaid, including, without limitation, the expenses of the Purchasers reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above12.04; and
(vii) seventh, unless a Termination Event or Incipient Termination Event has occurred and is continuing, any remaining amounts on deposit in the applicable Agent Account, to be paid to the Seller Account (or, with the Administrative Agent’s consent, any other account designated by the Seller). For the avoidance of doubt, if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the an Agent Account).
(b) On each Settlement Date until the Termination Date, the Purchaser Administrative Agent shall, except as otherwise provided in Section 2.112.12, withdraw amounts on deposit in the Agent Account Accounts and pay such amounts as 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 Purchaser Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the payment of accrued and unpaid Daily Yield, pro rata;
(iii) third, to the payment of the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer; provided, that if the Servicer owes the Seller any amounts, such amounts shall be set-off from the Servicing Fees owed and only the net amount of Servicing Fees shall be paid;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(A) first, to be paid on such Settlement Day applied in reduction of the Capital Investment of the Revolving Purchaser InterestInvestment, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any until the Capital Investment of the Revolving Purchaser Interest is reduced to zero and
(B) secondany, to be retained in the Agent Account as Cash Collateralpro rata;
(v) fifth, if any of the conditions precedent set forth in Section 3.02 shall not be satisfiedsatisfied as of such Settlement Date, to the payment of the Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, pro rata;
(vi) sixth, to the extent then due and payable, pro rata, to the payment of all other obligations of the Seller accrued and unpaid Seller Obligations which are then required to be paid hereunder, including, without limitation, the expenses of the Purchasers reimbursable under Section 12.0412.04 and any accrued and unpaid Servicing Fees not paid pursuant to clause third above; and
(vii) seventh, to be paid to the Seller AccountAccount (or, with the Administrative Agent’s consent, any other account designated by the Seller).
(c) If and to the extent a Purchase Excess exists on any Business Day and the amounts on deposit in the Agent Account Accounts are not sufficient to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv), the Seller shall (i) deposit an amount equal to the amount of such Purchase Excess in the Master Agent Account by no later than 11:00 a.m. (New York time) on the Business Day immediately succeeding Business Daythe earlier of the day that the Seller was notified of such Purchase Excess or the day the Seller first knew of such Purchase Excess, which amount shall be applied by the Purchaser Administrative Agent as an immediate reduction of Capital Investment in respect of the Revolving Purchaser Interest (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day).
(d) To the extent that amounts on deposit in the Agent Account Accounts on any day are insufficient to pay amounts due on such day in respect of the any Purchase Excess, any matured Daily Yield, Fees or any other amounts due and payable as of such day by the Seller hereunder, the Seller shall pay, upon notice from the Purchaser Administrative Agent, the amount of such insufficiency to the Purchaser Administrative Agent in Dollars, in immediately available funds (for the account of the Purchaser Administrative Agent, or the applicable Purchasers, Affected Parties or Indemnified Persons, as the case may be) 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 Daily Yield shall continue to accrue and be payable thereon at the Daily Yield Rate, until the next succeeding Business Day.
(e) The Seller hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Seller, and the Seller hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Administrative Agent in accordance with this Section 2.08.
(f) All payments in reduction of Capital Investment and all payments of Daily Yield, Fees and other amounts payable by the Seller 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 Daily Yield shall accrue thereon at the Daily Yield Rate 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 Seller 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 thereof) or in which it is doing business other than solely as a result of the transactions contemplated hereunder this Agreement or any Branch Profits Tax imposed by the U.S. or any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement Related Document (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Seller 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 Seller shall make such deductions, and (iii) the Seller 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 Seller shall furnish to the Purchaser Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Seller 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) Prior to the receipt of any payments hereunder each foreign Purchaser shall provide Agent, Purchaser Agent and Seller with two properly executed forms W-8BEN claiming a full exemption from U.S. withholding tax.
(i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts to the Seller.
(j) Upon receipt of a notice written evidence in accordance with Section 7.03 7.03(b) of the Transfer Sale Agreement, the Purchaser Administrative Agent shall, if such amounts have not been applied previously to the Seller Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Application of Collections; Time and Method of Payments. (a) Each Advance shall mature, and be payable, on the earlier of (i) the date funds are allocated to such Advance pursuant to clause (iv)(A) or (v) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the Facility Termination Date (in which case such Advance shall be payable in full).
(b) On each Business Day, the Purchaser Agent Borrower (or the Servicer on its behalf) shall allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on deposit in the Agent Accrual Account on such day and not previously allocated under this subsection (ab) as follows, in the following order of priority:
(i) first, to be retained in the Agent Accrual Account for payment and paid in accordance with clause (i) of the following subsection (bc), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Agent and the Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to be retained in the Agent Accrual Account for payment and paid in accordance with clause (ii) of the following subsection (bc), an amount equal to the aggregate Daily 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 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 such datethe 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 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 retained in deposited into the Agent Accrual Account for payment and paid in accordance with clause (iii) of the following subsection (bc), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to the such replacement Servicer;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(A) first, to be paid on such Business Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and
(B) second, to be retained in the Agent Accrual Account as Cash Collateraland 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 of the conditions precedent set forth in Section 3.02 shall not be satisfied, all such remaining amounts not to exceed the extent not greater than the Capital Investment Outstanding Principal Amount to be retained in the Agent Accrual Account until paid in accordance with the following subsection (bc) or all such conditions are satisfied;
(vi) sixth, to be retained in the Agent Accrual Account and paid in accordance with the applicable provisions of the following subsection (bc), an amount equal to the aggregate amount of all other accrued and unpaid Seller Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, including the expenses of the Purchasers Lenders reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above12.04; and
(vii) seventh, unless a Termination Event or Incipient Termination Event has occurred and is continuingcontinuing or would result therefrom, any remaining amounts on deposit in the Agent Account, to be paid to the Seller Account (Borrower; provided that if a Termination Event or Incipient Termination Event has occurred and is continuing, such amounts shall remain in the Agent Accrual Account).
(bc) On each Settlement Date until the Termination Date, Borrower (or the Purchaser Agent shall, except as otherwise provided in Section 2.11, Servicer on its behalf) shall withdraw amounts on deposit in the Agent Accrual Account and pay such amounts as follows 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 Purchaser Administrative Agent which are reimbursable pursuant to the terms hereof;
(ii) second, to the Agent Account, to the payment of accrued and unpaid Daily YieldYield which is then due and payable in respect of the applicable Advances, pro ratarata 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 the such replacement Servicer; provided, that if the Servicer owes the Seller any amounts, such amounts shall be set-off from the Servicing Fees owed and only the net amount of Servicing Fees shall be paid;
(iv) fourth, an amount equal to any Purchase Excess if be retained in the Facility Termination Date has not occurred:
Accrual Account and paid (A) first, if required pursuant to be paid on such Settlement Day Section 2.02(c)(v), in reduction of Capital Investment of an amount sufficient to reduce the Revolving Purchaser Interest, aggregate Accordion Advanced Amount (ratably according to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10each Lender’s Accordion Advanced Amount, if any any) until the Capital Investment of the Revolving Purchaser Interest such amount is reduced to zero and
and (B) second, in an amount equal to be retained in the Agent Account as Cash Collateralall outstanding Advances (ratably according to each Lender’s outstanding Advances, if any) which are 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 Capital InvestmentOutstanding Principal Amount of all other Advances, together with amounts payable with respect thereto under Section 2.10, if any, pro rata;
(vi) sixth, to the extent then due and payable, pro rata, to the payment of all other obligations of the Borrower accrued and unpaid Seller Obligations which are then required to be paid hereunder, including, without limitation, including the expenses of the Purchasers Lenders reimbursable under Section 12.04; and
(vii) seventh, to be paid to the Seller AccountBorrower.
(cd) If and to the extent a Purchase Funding Excess exists on any Business Day and the amounts on deposit in the Agent Account are not sufficient to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv)Day, the Seller Borrower shall (i) deposit retain an amount equal to the amount of such Purchase Funding Excess in the Agent Accrual 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 Purchaser Agent as an Administrative Agent, in immediate reduction of Capital Investment in respect repayment of the Revolving Purchaser Interest outstanding amount of Advances (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day.
(d) 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 any Purchase Excess, any matured Daily Yield, Fees or any other amounts due and payable by the Seller hereunder, the Seller shall pay, upon notice from the Purchaser Agent, the amount of such insufficiency to the Purchaser Agent in Dollars, in immediately available funds (for the account of the Purchaser Agent, the applicable Purchasers, 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 Daily Yield shall continue to accrue and be payable thereon at the Daily Yield Rate, until the next succeeding Business Day).
(e) The Seller Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the SellerBorrower, and the Seller Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Administrative Agent in accordance with this Section 2.08.
(f) All payments in reduction of Capital Investment principal of the Advances and all payments of Daily Yieldinterest, Fees and other amounts payable by the Seller Borrower hereunder shall be made in Dollars, in immediately available funds. If any Any such payment becomes becoming due on a day other than a Business Day, the maturity thereof will Day shall be extended to payable on the next succeeding Business Day and Daily Yield shall accrue thereon at the Daily Yield Rate shall be payable during such extensionDay. Payments received at or prior to 2:00 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 2:00 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 Seller 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 or in which it is doing business other than solely as a result of the transactions contemplated hereunder or any Branch Profits Tax imposed by the U.S. or any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Seller Borrower shall be required by law to deduct or withhold 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 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 Seller Borrower shall make such deductionsdeductions or withholdings, and (iii) the Seller 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 Indemnified Taxes, the Seller Borrower shall furnish to the Purchaser Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Seller 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) Prior to the receipt of any payments hereunder each foreign Purchaser shall provide Agent, Purchaser Agent and Seller with two properly executed forms W-8BEN claiming a full exemption from U.S. withholding tax.
(i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts to the Seller.
(j) Upon receipt of a notice in accordance with Section 7.03 of the Transfer Sale Agreement, the Purchaser Administrative Agent shall, if such amounts have not been applied to the Seller Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Application of Collections; Time and Method of Payments. The entirety of this Section 2.08 shall be subject to Section 12.15(b) (including, without limitation, subsections (a), (b), (c), (d) and (e)).
(a) Each Advance shall mature, and be payable, on the earlier of (i) the date funds are allocated to such Advance pursuant to clause (iii) or (iv) of subsection (c) below (and in such case only to the extent of the funds so allocated), and (ii) the Commitment Termination Date (in which case such Advance shall be payable in full).
(b) On each Business Day, the Purchaser Administrative Agent shall allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on deposit in the Agent Account on such day and not previously allocated under this subsection (ab) as follows, in the following order of priority:
(i) first, to be retained in the Agent Account for payment and paid in accordance with clause (i) of the following subsection (bc), an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Administrative Agent which are reimbursable pursuant to 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;
(iii) third, unless an Event of Servicer Termination (other than the type specified in Section 8.01(i) of the Sale Agreement) has occurred and is continuing, 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 Servicing Fees and accrued and unpaid through such date;
(iv) fourth, to be retained in the Agent Account and paid in accordance with clause (iv) of the following subsection (c) or set aside and applied by the Administrative Agent in accordance with the following subsection (d), as applicable, an amount equal to all outstanding Advances which are then due and payable on such Business Bay; it being understood that if and to extent a Funding Excess is determined to exist on such Business Day, Advances in an amount equal to such Funding Excess are due and payable in accordance with the following subsection (d);
(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;
(iivi) second, to be retained in the Agent Account for payment in accordance with clause (ii) of the following subsection (b), an amount equal to the aggregate Daily Yield accrued and unpaid through such date;
(iii) third, to be retained in the Agent Account for payment in accordance with clause (iii) of the following subsection (b), an amount equal to the aggregate accrued and unpaid Servicing Fees through such date payable to the Servicer;
(iv) fourth, an amount equal to any Purchase Excess if the Facility Termination Date has not occurred:
(A) first, to be paid on such Business Day in reduction of Capital Investment of the Revolving Purchaser Interest, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any, until the Capital Investment of the Revolving Purchaser Interest is reduced to zero; and
(B) second, to be retained in the Agent Account as Cash Collateral;
(v) fifthsixth, 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 Capital Investment to be retained in the Agent Account until paid in accordance with the following subsection (bc) or all such conditions are satisfied;
(vivii) sixthseventh, to be retained in the Agent Account and paid in accordance with the applicable provisions of the following subsection (bc), an amount equal to the aggregate amount of all other accrued and unpaid Seller Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, the expenses of the Purchasers Lenders reimbursable under Section 12.04 and any accrued and unpaid Servicing Fees not allocated pursuant to clause third above12.04; and
(viiviii) seventheighth, unless a Termination Event or Incipient Termination Event has occurred and is continuing, (A) to be paid as directed by the applicable Originator to the Borrower and the Agent in writing, first, an amount equal to the purchase price for Sold Receivables payable on that date, then to the extent of remaining amounts available to the payment of the balance due on the applicable Subordinated Note, and (B) then any remaining amounts on deposit in the Agent Account, to available after such payment shall be paid to the Seller Borrower Account (if a Termination Event or Incipient Termination Event has occurred and is continuing, all such amounts payable under this clause seventh, shall remain in the Agent Account).
(bc) On each Settlement Date until the Termination Dateon which any Borrower Obligations are due for payment, the Purchaser Administrative Agent shall, except as otherwise provided in Section 2.11, 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, pro rata, to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Purchaser Administrative Agent which are reimbursable pursuant to the terms hereof; provided, that, the disbursement pursuant to this clause first shall not exceed $100,000 in any calendar year;
(ii) second, if such Business Day is an Interest Payment Date, to the payment of accrued and unpaid Daily Yieldinterest which is then due and payable in respect of the applicable Advances, pro rata;
(iii) third, unless an Event of Servicer Termination (other than the type specified in Section 8.01(i) of the Sale Agreement) has occurred and is continuing, to the payment of the aggregate all Servicing Fees accrued and unpaid Servicing Fees through such date payable to the Servicer; provided, that if the Servicer owes the Seller any amounts, such amounts shall be set-off from the Servicing Fees owed and only the net amount of Servicing Fees shall be paiddate;
(iv) fourth, an amount equal to the payment of any Purchase Excess if outstanding Advances then due and payable, pro rata; provided, that principal on Advances shall be applied in the Facility Termination Date has not occurred:
(A) first, to be paid on such Settlement Day in reduction of Capital Investment of the Revolving Purchaser Interestfollowing order, to the Purchasers ratably based on the amount of their respective Capital Investment, together with amounts payable with respect thereto under Section 2.10, if any until the Capital Investment 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 Purchaser Interest is reduced to zero and
(B) Credit Advances), and second, to be retained in the Agent Account as Cash Collateralrespect 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 Capital InvestmentOutstanding 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 payable with respect thereto under Section 2.10, if any, pro rata;
(vi) sixth, to the extent then due and payable and not otherwise 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 Seller Obligations which are then required to be paid hereunder, including, without limitation, the expenses of the Purchasers Lenders reimbursable under Section 12.04; and
(viiviii) seventheighth, unless a Termination Event or Incipient Termination Event has occurred and is continuing, (A) to be paid as directed by the applicable Originator to the Borrower and the Agent in writing, first, an amount equal to the purchase price for Sold Receivables payable on that date, then to the extent of remaining amounts available to the payment of the balance due on the applicable Subordinated Note, and (B) then any remaining amounts available after such payment shall be paid to the Seller Borrower Account (if a Termination Event or Incipient Termination Event has occurred and is continuing, all such amounts payable under this clause seventh, shall remain in the Agent Account).
(cd) If and to the extent a Purchase Funding Excess exists is determined to exist on any Business Day, (i) by no later than 4:00 p.m. (New York time) on the Business Day and immediately succeeding the Business Day that such Funding Excess was determined to exist, the Administrative Agent shall allocate the amounts on set aside pursuant to clause (b)(iv) of Section 2.08 to reduce such Funding Excess and (ii) if such Funding Excess is greater than the amounts set aside pursuant to clause (b)(iv) of Section 2.08 to reduce such Funding Excess, the Borrower shall deposit in the Agent Account are not sufficient Account, by no later than 4:00 p.m. (New York time) on the Business Day immediately succeeding the Business Day that such Funding Excess was determined to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv)exist, the Seller shall (i) deposit an amount equal to the amount of such Purchase Excess in shortfall. Such amounts paid or allocated pursuant to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day, which amount foregoing sentence shall be applied by the Purchaser Administrative Agent as an first, in immediate reduction of Capital Investment in respect 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 Purchaser Interest Credit Advances (together with amounts payable with respect thereto under Section 2.10) or (ii) if the Capital Investment in respect of the Revolving Purchaser Interest has been reduced to zero, remit Cash Collateral in an amount equal to such Purchase Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day).
(de) 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 Purchase Excess, Advances or any matured Daily Yieldinterest, Fees or any other amounts due and payable by the Seller Borrower hereunder, the Seller Borrower shall pay, upon notice from the Purchaser Administrative Agent, the amount of such insufficiency to the Purchaser Administrative Agent in Dollars, in immediately available funds (for the account of the Purchaser Administrative Agent, the applicable PurchasersLenders, Affected Parties or Indemnified Persons) not later than 11:00 a.m. 4:00 p.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 Daily Yield interest shall continue to accrue and be payable thereon at the Daily Yield RateLIBOR Rate (in the case of LIBOR Rate Advances) or the Index Rate (in all other cases), until the next succeeding Business Day.
(ef) The Seller Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the SellerBorrower, and the Seller Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Purchaser Administrative Agent in accordance with this Section 2.08.
(fg) All payments in reduction of Capital Investment principal of the Advances and all payments of Daily Yieldinterest, Fees and other amounts payable by the Seller 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 Daily Yield shall accrue interest thereon at the Daily Yield 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 4:00 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 4:00 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.
(gh) Any and all payments by the Seller 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, withholdings (excluding taxes any tax imposed on or measured by the net income, gross receipts income or profits or any franchise taxes or other tax in lieu thereof (including branch profits or similar taxes) of any Affected Party by (i) the jurisdictions jurisdiction under the laws of which such Affected Party is organized or by any political subdivisions thereof subdivision thereof, or in which it is doing business other than solely as a result (ii) the jurisdiction of the transactions contemplated hereunder such Affected Party’s applicable lending office or any Branch Profits Tax imposed by the U.S. or any U.S. withholding tax to which the Affected Party is subject on the date it becomes a party to this Agreement political subdivision thereof) (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “Indemnified Taxes”). If the Seller 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 Seller Borrower shall make such deductions, and (iii) the Seller 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 Seller Borrower shall furnish to the Purchaser Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Seller 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. The foregoing notwithstanding, the Borrower shall have no obligation to increase the amount paid or indemnify any Affected Party under this Section 2.08(h) Prior to the receipt extent such amounts are payable as a result of, (i) in the case of any payments hereunder each foreign Purchaser an Affected Party that is a U.S person as defined in I.R.C. § 7701(a)(30) but is not a person to whom a payment of interest may be made under Treas. Reg. § 1.6049-4(c) without the payor being required to file an information return, the failure of the Affected Party to provide the Borrower with a validly prepared and executed Form W-9 or, (ii) in the case of an Affected Party that is not a U.S. person as defined in I.R.C. § 7701(a)(30), the failure of such person to provide the Borrower with a validly prepared and executed Form W-8BEN, W-8EXP or W-8ECI demonstrating that such Affected Party is eligible for the portfolio interest exemption under I.R.C. § 871(h) and 881(c) or other exemption under U.S. law or applicable treaty providing for no withholding on the relevant payment; provided, however, that the Affected Party shall provide Agent, Purchaser Agent and Seller with two properly executed have no obligation to deliver such forms W-8BEN claiming to the extent it is no longer able to deliver such forms due to a full exemption from U.S. withholding taxchange in law.
(i) Any Affected Party which receives a refund of any Indemnified Taxes for which it received payments under Section 2.08(g) hereof, shall promptly refund such amounts to the Seller.
(j) Upon receipt of a notice in accordance with Section 7.03 of the Transfer Sale Agreement, the Purchaser Administrative Agent shall, if such amounts have not been applied to the Seller Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Vertis Inc)
