Common use of Excluded Obligors Clause in Contracts

Excluded Obligors. (a) Subject to clause (c) below, the Borrower and the Servicer, acting jointly, from time to time may exclude certain customers of the Originators as Obligors, and thereby exclude from the Receivables the receivables generated by those customers from and after the effectiveness of the exclusion of the respective customer (each such customer so excluded, an “Excluded Obligor”). Initially, the Excluded Obligors shall consist only of the customer(s) listed on Schedule VI (as added by that certain Amendment No. 5 to Receivables Financing Agreement and Amendment No. 1 to Performance Guaranty, dated as of January 6, 2017), and such exclusion shall be (b) The Borrower or the Servicer shall instruct (or cause a Sub-Servicer to instruct) all applicable U.S. Originators to notify the related Excluded Obligors to deliver any payments with respect to the related Excluded Receivables to an account (or lock- box) other than (i) the PNC Lock-Box Account (or the PNC Lock-Box) or (ii) any other Lock-Box Account (or related Lock-Box). If any payment is nevertheless delivered into any such unpermitted account or lock-box, the Borrower (or the Servicer on its behalf) shall identify and transfer such payment into some other account or lock-box within two (2) Business Days of the receipt of such payment. Prior to the establishment of the PNC Lock-Box and PNC Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) other than the BofA Lock-Box and/or BofA Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the BofA Lock-Box or BofA Lock- Box Account, as applicable. Subsequent to the establishment of the PNC Lock-Box and PNC Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) (including, without limitation, the BofA Lock-Box and/or BofA Lock-Box Account) other than the PNC Lock-Box and/or PNC Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the PNC Lock-Box or PNC Lock-Box Account, as applicable. For the avoidance of doubt, none of the Borrower, the Servicer nor any related Originator shall be in violation of the covenants set forth in Sections 8.01(h) or 8.02(g) of this Agreement or Section 6.1(g) of the U.S. Purchase and Sale Agreement, as applicable, so long as the Borrower, the Servicer and such Originator complies with the terms of this clause (b). (c) In no event may any additional customer be excluded if, after giving effect to such exclusion, the attributed outstanding balance of all receivables of all Excluded Obligors would exceed $5,000,000. For this purpose, the attributed outstanding balance as to any Excluded Obligor shall equal the aggregate Outstanding Balance of Receivables of such customer as reported in the most recent Information Package (or, if later, Interim Report) furnished to the Administrative Agent prior to: (i) in the case of any customer listed on Schedule VI as added by the aforesaid Amendment No. 5, the effectiveness of the aforesaid amendment; and (ii) in the case of any other customer, the date on which the 30-day notice of exclusion pertaining to such customer was given to the Administrative Agent.

Excluded Obligors. (a) Subject to clause (c) below, the Borrower and the Servicer, acting jointly, The Servicer may from time to time may exclude certain customers of the Originators as Obligors, and thereby exclude from the Receivables the receivables generated by those customers from and after the effectiveness of the exclusion of the respective customer request (each such customer so excluded, an “Excluded Obligor”). Initially, the Excluded Obligors shall consist at its discretion but only of the customer(s) listed on Schedule VI (as added by that certain Amendment No. 5 to Receivables Financing Agreement and Amendment No. 1 to Performance Guaranty, dated as of January 6, 2017), and such exclusion shall be (b) The Borrower or the Servicer shall instruct (or cause a Sub-Servicer to instruct) all applicable U.S. Originators to notify the related Excluded Obligors to deliver any payments with respect to Obligors to be included in a supply-chain finance facility) that one or more Obligors be designated as Excluded Obligors as of a certain date (the related “Excluded Receivables Date”) by delivering an Excluded Obligor Request to an account (or lock- box) other than the Administrator and each Purchaser Agent, which Excluded Obligor Request shall (i) list the PNC Lock-Box Account (or the PNC Lock-Box) or name of each such proposed Excluded Obligor, (ii) specify the Excluded Date, (iii) attach a pro forma Information Package that excludes from the calculation of Eligible Receivables listed therein any Receivable whose related Obligor is a proposed Excluded Obligor, and (iv) be delivered no later than (A) five (5) Business Days prior to the proposed Excluded Date, if delivered pursuant to the first proviso below and (B) fifteen (15) Business Days prior to the proposed Excluded Date, if delivered pursuant to the second proviso below; provided, that if the aggregate Outstanding Balance of such proposed Excluded Obligor Receivables together with the Receivables of any other Lock-Box Account Obligors that became Excluded Obligors in the same calendar month, in each case, as reported in the most recently delivered Information Package is less than or equal to 10% of the average aggregate Outstanding Balance of all Pool Receivables for the preceding twelve (12) calendar months, as reported in such Information Package, then no consent or related Lock-Box). If approval from the Administrator or any payment Purchaser Agent shall be required to designate such Obligors as Excluded Obligors, subject to the satisfaction of clauses (i) to (iv) above; provided, further, that if such percentage, calculated in accordance with the foregoing proviso, is nevertheless delivered into greater than 10%, then such designation shall require the consent of the Administrator and each Purchaser Agent, which consent they may grant or withhold in their sole and absolute discretion, and which consent (if granted) shall be evidenced by the Administrator and each Purchaser Agent’s countersignature to such Excluded Obligor Request, it being understood and agreed that in no event shall any Obligor be designated as an Excluded Obligor pursuant to this Section 4.16 if (x) a Termination Event or Unmatured Termination has occurred and is continuing, or would occur and be continuing due to any such unpermitted account designation or lock-box(y) if after giving effect to any such proposed designation, the Borrower Aggregate Capital plus the Adjusted Aggregate LC Amount exceeds the Purchase Limit, or the Purchased Interest exceeds 100%. Upon the approval or deemed approval of an Obligor as an Excluded Obligor in accordance with the terms set forth herein, (i) such Obligor shall constitute an Excluded Obligor as of the Excluded Date and (ii) the Administrator (or the Servicer on its behalf) shall identify file on or promptly after the Excluded Date one or more UCC-3 financing statement amendments with respect to UCC-1 financing statements filed against an Originator in connection with the Transaction Documents, prepared by or on behalf of the Servicer and transfer consented to in writing by the Administrator, releasing the Administrator’s security interest in the Receivables created on or after the related Excluded Date, the Obligor of which is an Excluded Obligor, and all corresponding Related Security (but no other collateral). In addition, Seller and Servicer covenant and agree to, and to cause each Originator to, instruct each Excluded Obligor on or promptly following the applicable Excluded Date to deliver payments on all such payment into some other account or Excluded Receivables to any lock-box within two (2) Business Days of the receipt of such payment. Prior to the establishment of the PNC or account other than a Lock-Box and PNC or a Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) other than the BofA Lock-Box and/or BofA Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the BofA Lock-Box or BofA Lock- Box Account, as applicable. Subsequent to the establishment of the PNC Lock-Box and PNC Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) (including, without limitation, the BofA Lock-Box and/or BofA Lock-Box Account) other than the PNC Lock-Box and/or PNC Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the PNC Lock-Box or PNC Lock-Box Account, as applicable. For the avoidance of doubt, none of the Borrower, the Servicer nor any related Originator shall be in violation of the covenants set forth in Sections 8.01(h) or 8.02(g) of this Agreement or Section 6.1(g) of the U.S. Purchase and Sale Agreement, as applicable, so long as the Borrower, the Servicer and such Originator complies with the terms of this clause (b). (c) In no event may Section 5.17(a) of the Receivables Purchase Agreement is amended and restated in order to incorporate the black-lined changes set forth below: (a) Notwithstanding any additional customer be excluded ifprovision herein or in any Fee Letter to the contrary, after giving effect to if any Related Committed Purchaser becomes a Defaulting Purchaser, for so long as such exclusionRelated Committed Purchaser is a Defaulting Purchaser, the attributed outstanding balance “Facility Fees””Unused Fees” described in the RPA Fee Letter shall cease to accrue on the undrawn portion (if any) of all receivables of all Excluded Obligors would exceed $5,000,000. For this purpose, the attributed outstanding balance as to any Excluded Obligor shall equal the aggregate Outstanding Balance of Receivables Commitment of such customer as reported in the most recent Information Package (orDefaulting Purchaser; provided, if laterhowever, Interim Report) furnished that said Facility Fees shall continue to the Administrative Agent prior to: (i) in the case of any customer listed accrue on Schedule VI as added by the aforesaid Amendment No. 5, the effectiveness of the aforesaid amendment; and (ii) in the case of any other customer, the date on which the 30-day notice of exclusion pertaining to such customer was given to the Administrative AgentDefaulting Purchaser’s Exposure.

Excluded Obligors. (a) Subject to clause (c) below, the Borrower and the Servicer, acting jointlyThe Servicer may, from time to time may exclude certain customers and with the consent of the Originators Administrator and the Majority Purchaser Agents, request that certain Obligors be designated as Obligors, and thereby exclude from the Receivables the receivables generated by those customers from and after the effectiveness of the exclusion of the respective customer (each such customer so excluded, an “Excluded Obligor”). Initially, the Excluded Obligors by delivering an Excluded Obligor Request to the Administrator and each Purchaser Agent, substantially in the form of Annex H hereto, which Excluded Obligor Request shall consist only (i) list the names of such proposed Excluded Obligors and (ii) specify the customer(s) listed on Schedule VI (as added by that certain Amendment No. 5 proposed Excluded Obligor Date with respect to Receivables Financing Agreement and Amendment No. 1 to Performance Guaranty, dated as of January 6, 2017), and such exclusion shall beproposed Excluded Obligors. (b) The Borrower So long as the Administrator and the Majority Purchaser Agents have acknowledged in writing such Obligor’s designation as an Excluded Obligor, such acknowledgement not to be unreasonably withheld, conditioned or delayed, then (x) upon the Servicer countersignatures by the Administrator and the Majority Purchaser Agents of such Excluded Obligor Request, such proposed Excluded Obligor shall instruct (or cause a Sub-Servicer to instructI) all applicable U.S. Originators to notify constitute an Excluded Obligor as of the related Excluded Obligors Obligor Date, (II) be added to deliver any payments Schedule VII to this Agreement and (III) no longer constitute an Obligor for purposes of the Transaction Documents except with respect to Receivables originated prior to the related Excluded Receivables to an account Obligor Date and (or lock- box) other than (iy) the PNC Lock-Box Account (or the PNC Lock-Box) or (ii) any other Lock-Box Account (or related Lock-Box). If any payment is nevertheless delivered into any such unpermitted account or lock-box, the Borrower Administrator (or the Servicer on its behalf) shall identify and transfer such payment into some other account or lock-box within two (2) Business Days shall, in each case at the expense of the receipt Seller, (I) file on or promptly following the related Excluded Obligor Date and at the sole expense of such payment. Prior the Seller, one or more UCC-3 financing statement amendments, in form and substance reasonably satisfactory to the establishment of Administrator, with respect to UCC-1 financing statements filed against the PNC Lock-Box applicable Originator in connection with the Transaction Documents releasing the Administrator’s security interest and PNC Lock-Box Account, to other rights in the extent any payments Receivables created on Pool Receivables of an or after the related Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) other than the BofA Lock-Box and/or BofA Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the BofA Lock-Box or BofA Lock- Box Account, as applicable. Subsequent to the establishment of the PNC Lock-Box and PNC Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) (including, without limitationDate, the BofA Lock-Box and/or BofA Lock-Box Account) other than the PNC Lock-Box and/or PNC Lock-Box AccountObligor of which is such Excluded Obligor, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the PNC Lock-Box or PNC Lock-Box Account, as applicable. For the avoidance of doubt, none of the Borrower, the Servicer nor any all Related Security related Originator shall be in violation of the covenants set forth in Sections 8.01(h) or 8.02(g) of this Agreement or Section 6.1(g) of the U.S. Purchase and Sale Agreement, as applicable, thereto so long as such Related Security relates solely to such Excluded Receivables, and (II) take such other actions as may be reasonably necessary to evidence the Borrowerrelease of, in each case, the Servicer Administrator’s security interest and other rights in the Receivables created on or after the related Excluded Obligor Date, the Obligor of which is such Originator complies with the terms of this clause (b)Excluded Obligor, and all Related Security related thereto so long as such Related Security relates solely to such Excluded Receivables. (c) In no event may Each of the parties hereto hereby acknowledges and agrees that any additional customer be excluded if, after giving effect to such exclusionReceivable, the attributed outstanding balance Obligor of all receivables which is an Excluded Obligor, that was originated prior to the related Excluded Obligor Date shall remain in the Receivables Pool; provided that the Administrator and the Majority Purchaser Agents may consent to the release or reassignment of all any such Receivables if requested by the Servicer, such consent not to be unreasonably withheld, conditioned or delayed. (d) Upon no less than ten (10) Business Days’ notice, the Servicer may, from time to time and with the consent of the Administrator and the Majority Purchaser Agents, such consent not to be unreasonably withheld, conditioned or delayed, request that certain Excluded Obligors would exceed $5,000,000no longer be designated as Excluded Obligors; provided that any such request shall be accompanied by lien search results and other such confirmation as the Administrator may reasonably request showing that the Receivables generated by a previously Excluded Obligor are free and clear of any liens or encumbrances. For this purposeUpon any such redesignation, the attributed outstanding balance as applicable Excluded Obligors shall be removed from Schedule VII to any Excluded Obligor shall equal the aggregate Outstanding Balance of Receivables of such customer as reported in the most recent Information Package (or, if later, Interim Report) furnished to the Administrative Agent prior to: (i) in the case of any customer listed on Schedule VI as added by the aforesaid Amendment No. 5, the effectiveness of the aforesaid amendment; and (ii) in the case of any other customer, the date on which the 30-day notice of exclusion pertaining to such customer was given to the Administrative Agentthis Agreement.

Excluded Obligors. Notwithstanding any other provision of this Clause 24, any event or circumstance set out in any of Clauses 24.5 (Cross default) to 24.9 (Final judgment) (inclusive), Clause 24.10 (Unlawfulness and invalidity), Clause 24.12 (Cessation of business), Clause 24.14 (Audit qualification), Clause 24.15 (Expropriation) and Clause 24.16 (Repudiation and rescission of agreements) which would otherwise (but for this Clause 24.23) constitute any Event of Default will be deemed not to be an Event of Default with respect to any Excluded Obligor if and for so long as: (a) Subject it would have been (if it were not for this provision) an Event of Default only by reason of circumstances relating exclusively to clause such Excluded Obligor (or any obligation to procure or ensure in relation to such Excluded Obligor); (b) the circumstances giving rise to it have not been procured by or approved by any Transaction Obligor (which is not an Excluded Obligor), Holdco, the Parent, the Company or any other Group Member; (c) below, it would not reasonably be expected to have a Material Adverse Effect (taking into account the Borrower and the Servicer, acting jointly, from time to time may exclude certain customers obligations of the Originators Offshore Founder Obligor under the Personal Guarantor Dividend Undertaking (as Obligorsdefined in Schedule 14 (Permitted Restructuring)), and thereby exclude from does not and will not adversely affect the Receivables obligations of such Excluded Obligor under the receivables generated Intercreditor Agreement or any subordination created or expressed to be created under or evidenced by those customers from the Intercreditor Agreement; (d) (in the case of Clause 24.10 (Unlawfulness and after invalidity) or Clause 24.16 (Repudiation and rescission of agreements)) such event or circumstance does not relate to the effectiveness Intercreditor Agreement; (e) the Dividend Resolution Undertakings (as defined in Schedule 14 (Permitted Restructuring)) are given by sufficient number of holders of equity interests in WXAT to ensure that applicable resolutions are passed to procure and approve the declaration and payment of the exclusion dividends of WXAT referred to in paragraph 7(b)(iv) of Schedule 14 (Permitted Restructuring) (disregarding any and all Dividend Resolution Undertaking(s) (as defined in Schedule 14 (Permitted Restructuring)) given by any or all of the respective customer Excluded Obligor(s) to which this Clause 24.23 applies or to which an Excluded Breach (each such customer so excluded, as defined in Schedule 14 (Permitted Restructuring)) relates); (f) (in the case of an Excluded Obligor falling within any of paragraphs (c) and (d) of the definition of “Excluded Obligor”). Initially) the Offshore Founder Obligor shall have, the Excluded Obligors shall consist only of the customer(s) listed on Schedule VI (as added by that certain Amendment No. 5 to Receivables Financing Agreement and Amendment No. 1 to Performance Guaranty, dated as of January 6, 2017), and such exclusion shall be (b) The Borrower or the Servicer shall instruct (or cause a Sub-Servicer to instruct) all applicable U.S. Originators to notify the related Excluded Obligors to deliver any payments with respect prior to the related Excluded Receivables to an account (or lock- box) other than date falling two Business Days after the earlier of (i) the PNC Lock-Box Account (date on which the Offshore Founder Obligor or the PNC Lock-Box) Borrower is notified of such event or circumstance or (ii) any other Lock-Box Account the date on which the Offshore Founder Obligor or the Borrower becomes aware of such event or circumstance, given a Cure Election Notice (or related Lock-Boxas defined in the Personal Guarantor Dividend Undertaking (as defined in Schedule 14 (Permitted Restructuring))) in respect of such Excluded Obligor in accordance with clause 2.3 of the Personal Guarantor Dividend Undertaking (as defined in Schedule 14 (Permitted Restructuring)). If any payment is nevertheless delivered into of the conditions under any of paragraphs (a) to (f) ceases to be satisfied at any time, then such unpermitted account event or lock-box, the Borrower circumstance (if then subsisting or the Servicer on its behalfcontinuing) shall identify and transfer such payment into some other account or lock-box within two (2) Business Days constitute an Event of the receipt of such payment. Prior to the establishment of the PNC Lock-Box and PNC Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) other than the BofA Lock-Box and/or BofA Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the BofA Lock-Box or BofA Lock- Box Account, as applicable. Subsequent to the establishment of the PNC Lock-Box and PNC Lock-Box Account, to the extent any payments on Pool Receivables of an Excluded Obligor (as contemplated by clause (d) below) are remitted to an account (or lock-box) (including, without limitation, the BofA Lock-Box and/or BofA Lock-Box Account) other than the PNC Lock-Box and/or PNC Lock-Box Account, then the Borrower (or the Servicer on its behalf) will, within two (2) Business Days after any such remittance, identify and transfer such payments to the PNC Lock-Box or PNC Lock-Box Account, as applicableDefault. For the avoidance of doubt, none this Clause 24.23 shall be without prejudice to the provisions of the Borrower, Personal Guarantor Dividend Undertaking (as defined in Schedule 14 (Permitted Restructuring)) and any Event of Default that may arise by virtue of non-compliance by the Servicer nor Offshore Founder Obligor of any related Originator shall be in violation of the covenants set forth in Sections 8.01(h) or 8.02(g) of this Agreement or Section 6.1(g) provisions of the U.S. Purchase and Sale Agreement, Personal Guarantor Dividend Undertaking (as applicable, so long defined in Schedule 14 (Permitted Restructuring)) (including any failure to make good any Failure (as defined in the Borrower, the Servicer and such Originator complies with the terms of this clause Personal Guarantor Dividend Undertaking (bas defined in Schedule 14 (Permitted Restructuring))). (c) In no event may any additional customer be excluded if, after giving effect to such exclusion, the attributed outstanding balance of all receivables of all Excluded Obligors would exceed $5,000,000. For this purpose, the attributed outstanding balance as to any Excluded Obligor shall equal the aggregate Outstanding Balance of Receivables of such customer as reported in the most recent Information Package (or, if later, Interim Report) furnished to the Administrative Agent prior to: (i) in the case of any customer listed on Schedule VI as added by the aforesaid Amendment No. 5, the effectiveness of the aforesaid amendment; and (ii) in the case of any other customer, the date on which the 30-day notice of exclusion pertaining to such customer was given to the Administrative Agent.