Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection. (b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection. (c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 5 contracts
Samples: Tertiary Purchase Agreement, Secondary Purchase Agreement (Ingersoll Rand Co LTD), Tertiary Purchase Agreement (Ingersoll Rand Co LTD)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (The proceeds from the sale or exchange of Securities will be credited and the cost of such Securities purchased or acquired will be debited to the Account in whole or accordance with the schedule specified in part) a Diluted Receivablethe Custodian's operating guidelines in effect from time to time. Upon the execution and delivery of this Agreement, the Seller shall Customer acknowledges receipt of the Custodian's operating guidelines in effect on the date hereof. Notwithstanding the preceding sentence, settlement and payment for Securities received for an Account and delivery of Securities maintained for an Account may be deemed to have received on such day a Collection of such Transferred Receivable effected in accordance with the customary or established securities trading or securities processing practices and procedures in the amount of such Diluted Receivable. If jurisdiction or market in which the Seller is not the Collection Agenttransaction occurs, the Seller shall pay including, without limitation, delivering Securities to the Collection Agent on purchaser thereof or prior to a dealer therefor (or an agent for such purchaser or dealer) against a receipt with the next Settlement Date all amounts deemed to have been received pursuant to this subsectionexpectation of receiving later payment for such Securities from such purchaser or dealer. The Custodian shall not be liable for any loss which results from effecting transactions in accordance with the customary or established securities trading or securities processing practices and procedures in the applicable jurisdiction or market.
(b) Upon discovery by The Custodian shall not be required to comply with any Instructions to settle the Seller or the Purchaser of a breach purchase of any of securities for an Account, unless there are sufficient immediately available funds in the representations Account, PROVIDED THAT, if, after all expenses, debits and warranties made by the Seller in Section 4.01(jwithdrawals ("Debits") with respect to any Transferred Receivable, such party shall give prompt written notice thereof applicable to the other partyAccount have been made and if after all Conditional Credits, as soon defined below, applicable to the Account have been made final entries as practicable and set forth in any event within three Business Days following (d) below, the amount of immediately available funds in such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price Account is at least equal to the Outstanding Balance aggregate purchase price of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include all securities for which the Related Security with respect Custodian has received Instructions to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agentsettle on that date ("Settlement Date"), the Seller Custodian, upon settlement, shall pay credit the Securities to the Collection Agent an Account by making a final entry on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionits books and records.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law Notwithstanding the foregoing, if, after all Debits applicable to the Account have been made, there remains outstanding any Conditional Credit applicable to the Account or the underlying Contractamount of immediately available funds in such Account is less than the aggregate purchase price of all securities for which the Custodian has received Instructions to settle on the Settlement Date, the Custodian, upon settlement, may credit the securities to the applicable Account by making a conditional entry on its books and records ("Conditional Credit"), pending receipt of sufficient immediately available funds in the Account.
(d) If, within a reasonable time from the posting of a Conditional Credit and after all Collections from an Obligor Debits applicable to the Account have been made, immediately available funds at least equal to the aggregate purchase price of any Transferred Receivable all securities subject to a Conditional Credit on a Settlement Date are deposited into the Account, the Custodian shall make the Conditional Credit a final entry on its books and records. In such case, the Customer shall be applied liable to the Transferred Receivables Custodian only for late charges at a rate mutually agreed upon in writing by the Custodian and the Customer.
(e) If, within a reasonable time from the posting of a Conditional Credit and after all Debits applicable to the Account have been made, immediately available funds at least equal to the aggregate purchase price of all securities subject to a Conditional Credit on a Settlement Date are not deposited into the Account, the Customer, authorizes the Custodian, as agent, to sell the securities and credit the applicable Account with the proceeds of such Obligor sale. In such case, the Customer shall be liable to the Custodian for any deficiencies, out-of-pocket costs and expenses associated with the sale of the securities, including but not limited to, shortfalls in the order sales proceeds.
(f) The Customer agrees that it will not use the Account to facilitate the purchase of securities without sufficient funds in the Account (which funds shall not include the proceeds of the age sale of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivablespurchased securities).
Appears in 5 contracts
Samples: Custodian Agreement (Usaa Mutual Fund Inc), Custodian Agreement (Usaa Mutual Fund Inc), Custodian Agreement (Usaa Mutual Funds Trust)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase (or purchase, in the case of a Contributed Receivable) such Transferred Receivable on the next succeeding Settlement Date for a repurchase (or purchase, in the case of a Contributed Receivable) price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase or purchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase or purchase, as the case may be, shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase (or purchase, in the case of a Contributed Receivable) price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 5 contracts
Samples: Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD), Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD), Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Settlement Procedures. On each Payment Date, the Servicer shall direct the Collateral Custodian to pay pursuant to the Servicing Report (and the Collateral Custodian shall make such payment from the Collection Account to the extent of Available Funds in reliance on the information set forth in such Servicing Report) to the following Persons, the following amounts in the following order of priority:
(a) If to each Hedge Counterparty, if applicable, pro rata, based on the respective amounts owed under all Interest Rate Hedge Transactions related thereto, including any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.unpaid Hedge Breakage Costs with respect thereto;
(b) Upon discovery by to the Seller or the Purchaser of a breach Servicer, in an amount equal to any accrued and unpaid Servicing Fees and any reimbursable expenses of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.successor Servicer;
(c) Except pro rata in accordance with the amounts due under this clause and to the extent not paid by the Borrower, to the Backup Servicer and the Collateral Custodian, pro rata, in an amount equal to (i) any accrued and unpaid Backup Servicing Fees, Collateral Custodian Fees, Owner Trustee Fees and Transition Expenses, and (ii) incurred but unreimbursed reasonable third-party, out-of-pocket expenses relating to their respective duties as stated Backup Servicer, Collateral Custodian or Owner Trustee hereunder, in subsection (a) or (b) respect of this Section 2.04 or as otherwise required by law which the Backup Servicer, the Collateral Custodian or the underlying ContractOwner Trustee, as applicable, has provided prior written notice setting forth such expenses in reasonable detail to the Servicer and the Administrative Agent, for the payment thereof, provided that amounts payable pursuant to this clause (ii) shall not exceed $5,000 for any Payment Date;
(d) to the Administrative Agent, on behalf of the Lenders, in an amount equal to any accrued and unpaid Interest and any other fees or expenses due and payable to the Lenders hereunder;
(e) to the Administrative Agent, for the account of each applicable Lender in reduction of the Outstanding Loan Balance, an amount equal to the Required Reduction Amount, if any;
(f) pro rata in accordance with the amounts due under this clause to the Administrative Agent, any applicable Lender, the Backup Servicer, the Collateral Custodian, any successor Servicer, the Indemnified Parties or the Secured Parties, all Collections other amounts, including any expenses, Increased Costs, Taxes or Indemnified Amounts due from the Borrower, but other than the principal and interest of the Outstanding Loan Balance, then due under this Agreement;
(g) after the occurrence and during the continuance of an Obligor Event of Default, to the Administrative Agent, for the account of each applicable Lender, all amounts necessary to reduce the Outstanding Loan Balance to $0; and
(h) any Transferred Receivable remaining amounts shall be applied distributed to the Transferred Receivables of Borrower (and the Borrower shall be permitted to, among other things, further distribute such Obligor in amounts to its Affiliates or its members at its discretion); provided that the order Borrower may at its discretion direct the Collateral Custodian to pay any portion of the age remaining amounts to the Administrative Agent, on behalf of such Receivablesthe Lenders, starting with in reduction of the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesOutstanding Loan Balance.
Appears in 4 contracts
Samples: Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted ReceivableOn each Business Day during the term of this Agreement, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to Company (or the Collection Agent on or prior behalf of the Company) shall remit to the next Settlement Date Transferor all funds that are available to the Company on such Business Day, whether constituting (i) amounts deemed on deposit in a Concentration Account that may be withdrawn by the Collection Agent as provided in Section 2.07(c) of the Loan Agreement, (ii) Advances (as defined in the Loan Agreement) deposited to have been received the Company’s account as provided in Section 2.01(g) of the Loan Agreement or (iii) other funds available to the Company, in each case other than (x) funds required to be maintained by the Company to comply with Applicable Law and the requirements of the Loan Agreement and (y) to the extent the Company determines to retain any or all of such available funds for its own purposes. The funds transferred to the Transferor on a Business Day pursuant to this subsectionthe preceding sentence constitute the “Distributed Funds” for such Business Day, and all Distributed Funds transferred to the Transferor during a Collection Period constitute the “Monthly Distributed Funds” for such Collection Period.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) The Monthly Report with respect to any Transferred Receivableeach Collection Period shall specify, such party shall give prompt written notice thereof to among other things, the other partyAggregate Transfer Value, as soon as practicable the aggregate Monthly Distributed Funds, the Purchase Percentage, the Contribution Percentage and the Noncomplying Receivables Adjustment, in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection each case in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionPeriod.
(c) Except On each Settlement Date, based on calculations set forth in the Monthly Report:
(i) (A) an amount of the Monthly Distributed Funds equal to the Purchase Percentage of the Aggregate Transfer Value shall constitute and shall be deemed for all purposes as stated payment of the Purchase Price to the Transferor, and (B) the Purchased Property for such Collection Period shall be the Purchase Percentage of the Receivables, Related Security and Collections Transferred to the Company during such Collection Period;
(ii) (A) an amount equal to the Contribution Percentage of the Aggregate Transfer Value shall constitute and shall be deemed for all purposes as a contribution by the Transferor to its capital account in subsection the Company, and (aB) or the Contributed Property for such Collection Period shall be the Contribution Percentage of the Receivables, Related Security and Collections Transferred to the Company during such Collection Period; and
(biii) if the Monthly Distributed Funds exceeds the Aggregate Transfer Value for the related Collection Period, then (A) the amount of this Section 2.04 or such excess, to the extent permitted by Applicable Law, shall be treated as otherwise required a distribution by law the Company to the Transferor of that amount of capital, and (B) the Transferor’s capital account in the Company shall be reduced by the amount of such excess and any amount of such excess that cannot be treated as a distribution under Applicable Law may be treated as part of the Monthly Distributed Funds for the following Collection Period.
(d) If the Company notifies the Collection Agent of any exceptions to its calculations in the Monthly Report, the Transferor and the Company shall promptly endeavor to resolve and reconcile the matters set forth in such notice.
(e) The Transferor shall make a payment to the Company, within two Business Days of notice thereof and in immediately available funds in an amount equal to the Noncomplying Receivables Adjustment with respect to any Noncomplying Receivables identified by the Collection Agent or the underlying ContractCompany (or its assigns) from time to time. Notwithstanding such payment obligation, all Collections from an Obligor of on any Transferred Receivable shall be applied Settlement Date prior to the Transferred Receivables occurrence of a Termination or Event of Termination, the Company in its sole discretion may elect to setoff or subtract all or any portion of such Obligor in Noncomplying Receivables Adjustment for the order related Collection Period from the Aggregate Transfer Value which would otherwise be paid to the Transferor or credited to the capital account of the age of Transferor on such Receivablesday, starting with the oldest which setoff will reduce such Receivable, unless such Obligor designates its payment or credit obligation on a dollar for application to specific Receivablesdollar basis.
Appears in 4 contracts
Samples: Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted ReceivableOn each Business Day during the term of this Agreement, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to Company (or the Collection Agent on or prior behalf of the Company) shall remit to the next Settlement Date Transferor all funds that are available to the Company on such Business Day, whether constituting (i) amounts deemed on deposit in the Concentration Account that may be withdrawn by the Collection Agent as provided in Section 2.07(c) of the Loan Agreement, (ii) Advances (as defined in the Loan Agreement) deposited to have been received the Company’s account as provided in Section 2.01(g) of the Loan Agreement or (iii) other funds available to the Company, in each case other than (x) funds required to be maintained by the Company to comply with Applicable Law and the requirements of the Loan Agreement and (y) to the extent the Company determines to retain any or all of such available funds for its own purposes. The funds transferred to the Transferor on a Business Day pursuant to this subsectionthe preceding sentence constitute the “Distributed Funds” for such Business Day, and all Distributed Funds transferred to the Transferor during a Collection Period constitute the “Monthly Distributed Funds” for such Collection Period.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) The Monthly Report with respect to any Transferred Receivableeach Collection Period shall specify, such party shall give prompt written notice thereof to among other things, the other partyAggregate Transfer Value, as soon as practicable the aggregate Monthly Distributed Funds, the Purchase Percentage, the Contribution Percentage and the Noncomplying Receivables Adjustment, in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection each case in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionPeriod.
(c) Except On each Settlement Date, based on calculations set forth in the Monthly Report:
(i) (A) an amount of the Monthly Distributed Funds equal to the Purchase Percentage of the Aggregate Transfer Value shall constitute and shall be deemed for all purposes as stated payment of the Purchase Price to the Transferor, and (B) the Purchased Property for such Collection Period shall be the Purchase Percentage of the Receivables, Related Security and Collections Transferred to the Company during such Collection Period;
(ii) (A) an amount equal to the Contribution Percentage of the Aggregate Transfer Value shall constitute and shall be deemed for all purposes as a contribution by the Transferor to its capital account in subsection the Company, and (aB) or the Contributed Property for such Collection Period shall be the Contribution Percentage of the Receivables, Related Security and Collections Transferred to the Company during such Collection Period; and
(biii) if the Monthly Distributed Funds exceeds the Aggregate Transfer Value for the related Collection Period, then (A) the amount of this Section 2.04 or such excess, to the extent permitted by Applicable Law, shall be treated as otherwise required a distribution by law the Company to the Transferor of that amount of capital, and (B) the Transferor’s capital account in the Company shall be reduced by the amount of such excess and any amount of such excess that cannot be treated as a distribution under Applicable Law may be treated as part of the Monthly Distributed Funds for the following Collection Period.
(d) If the Company notifies the Collection Agent of any exceptions to its calculations in the Monthly Report, the Transferor and the Company shall promptly endeavor to resolve and reconcile the matters set forth in such notice.
(e) The Transferor shall make a payment to the Company, within two Business Days of notice thereof and in immediately available funds in an amount equal to the Noncomplying Receivables Adjustment with respect to any Noncomplying Receivables identified by the Collection Agent or the underlying ContractCompany (or its assigns) from time to time. Notwithstanding such payment obligation, all Collections from an Obligor of on any Transferred Receivable shall be applied Settlement Date prior to the Transferred Receivables occurrence of a Termination or Event of Termination, the Company in its sole discretion may elect to setoff or subtract all or any portion of such Obligor in Noncomplying Receivables Adjustment for the order related Collection Period from the Aggregate Transfer Value which would otherwise be paid to the Transferor or credited to the capital account of the age of Transferor on such Receivablesday, starting with the oldest which setoff will reduce such Receivable, unless such Obligor designates its payment or credit obligation on a dollar for application to specific Receivablesdollar basis.
Appears in 3 contracts
Samples: Receivables Purchase and Contribution Agreement, Receivables Purchase and Contribution Agreement, Receivables Purchase and Contribution Agreement (Community Health Systems Inc)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (The collection of the Pool Receivables shall be administered by the Servicer in whole or in part) a Diluted Receivable, the accordance with this Agreement. The Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay provide to the Collection Agent Servicer on or prior to a timely basis all information needed for such administration, including notice of the next Settlement Date all amounts deemed to have been received pursuant to this subsectionoccurrence of any Termination Day and current computations of the Purchased Interest.
(b) Upon discovery The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Purchaser of a breach of any Servicer:
(i) set aside and hold in trust (and shall, at the request of the representations and warranties made Administrator, segregate in a separate account approved by the Seller Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 4.01(j) 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect to any Transferred Receivablethereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such party shall give prompt written notice thereof to Collections that, together with the other partyCollections set aside pursuant to this paragraph, as soon as practicable shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable reduction of their respective Capital) on the next succeeding Weekly Settlement Date for a repurchase price equal in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection AgentAdministrator, the Seller shall pay to and the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid Servicer of such Purchaser’s refusal, pursuant to this subsection.
Section 1.11, to extend its (cor its related Committed Purchaser’s) Except as stated Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or trust for the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables benefit of such Obligor Purchaser and applied in the order of the age of such Receivables, starting accordance with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.clause (iii) below;
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Fleetcor Technologies Inc), Receivables Purchase Agreement (Fleetcor Technologies Inc), Receivables Purchase Agreement (Fleetcor Technologies Inc)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount, discount for quick payment or other adjustment made by the relevant Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against such Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor’s Obligor’s bankruptcy), the such Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the either Seller or the Purchaser of a breach of any of the representations and warranties made by the a Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Ferro Corp), Purchase and Contribution Agreement (Ferro Corp)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article IV of this Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections into Collection Accounts. Subsequently, the Collection Agent shall forthwith cause all such Collections received in the Collection Accounts to be transferred into the Controlled Account within one Business Day; provided that, if the balance in any such Collection Account is less than $50,000, the Collection Agent shall not be obligated to transfer any amounts from such Collection Account as long as the account balance remains less than $50,000 and also as long as the balance is transferred according to a standing order (a “Threshold Basis”). Additionally, with respect to Collection Accounts that have balances less than $50,000 and whose balances are not transferred on a Threshold Basis, the Collection Agent will transfer funds manually from such accounts on a weekly basis. Any Amounts transferred pursuant to this Section 1.04(a) may be in an amount that leaves up to $10,000 remaining in each such Collection Account. The Seller shall provide to the Collection Agent (if other than United Rentals) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest in the Pool Receivables.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received or deemed received by it pursuant to this Agreement with respect to any Receivable Interest in the Pool Receivables:
(i) set aside and hold in trust (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited) for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables and for the Administrative Agent, out of the percentage of such Collections attributable to such Receivable Interest in the Pool Receivables, an amount equal to the Yield, all fees and payments due pursuant to each of the Fee Agreements, and the Collection Agent Fee accrued through such day for such Receivable Interest in the Pool Receivables and not previously set aside;
(ii) if such day is not a Liquidation Day, reinvest with the Seller, on behalf of the Investors or the Banks that hold such Receivable Interest in the Pool Receivables, the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest in the Pool Receivables pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust the entire remainder of such percentage of Collections for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited); provided, however, that if the Liquidation Day resulted solely by reason of the non-satisfaction of the initial purchase conditions (as set forth in paragraph 1 of Exhibit II) and such conditions are subsequently satisfied or are waived by the Purchaser Agents and written notice is provided to the Rating Agencies rating the Commercial Paper, any amounts that have been set aside and held in trust pursuant to this clause (iii) shall be reinvested in accordance with the preceding clause (ii); provided that the Event of Termination identified as paragraph (g) of Exhibit V cannot be waived by the Purchaser Agents; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing clause (ii) or the first proviso to clause (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to clause (i) above.
(c) On (x) the Settlement Day for a Receivable Interest in the Pool Receivables the Collection Agent shall deposit, as applicable, (i) with the Administrative Agent for its own account, Collections held for the Administrative Agent that relate to any fees owed to the Administrative Agent pursuant to the Scotia Capital Fee Agreement and any other accrued and unpaid amounts owed to the Administrative Agent by the Seller hereunder pursuant to Section 1.04(b)(i), (ii) into each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i), and (iii) with the Administrative Agent for transfer to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii); provided, that, in the event any Bank is a Delaying Bank at the time of transfer of such Collections by the Administrative Agent to each Purchaser Agent’s Account pursuant to this clause (iii), then such amounts shall be transferred by the Administrative Agent, first to the Purchaser Agent’s Account of each Purchaser Agent whose Related Banks are each Non-Delaying Banks ratably according to the amount then owed to each Investor or Bank related to each such Purchaser Agent, until the aggregate outstanding Capital of Receivable Interests in the Pool Receivables held by each Bank plus, in the event such Bank has any related Purchasers, such Bank’s ratable share of the outstanding Capital of Receivable Interests in the Pool Receivables held by such related Purchasers is equal to such Bank’s ratable share (based on the applicable Bank’s Percentage) of the aggregate outstanding Capital of Receivable Interests in the Pool Receivables, and second to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank and (y) any Liquidation Day that occurs at such time that there is a Delaying Bank, upon the request of the Purchaser Agents whose Related Banks are each Non-Delaying Banks, the Collection Agent shall deposit with the Administrative Agent for transfer to the Purchaser Agent’s Account of each such Purchaser Agent ratably according to the amount then owed to each Investor or Bank related to each such Purchaser Agent, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii) in an amount required for application in full under item “first” contained in the proviso at the end of Section 1.04(c)(x)(iii).
(d) Upon receipt of funds deposited into its Purchaser Agent’s Account, the related Purchaser Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield, all fees and payments due pursuant to each of the Fee Agreements, and second to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees if the Collection Agent is not United Rentals or an Affiliate of United Rentals, second to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield and all fees and payments due pursuant to each of the Fee Agreements, third to such Investors or Banks, pro rata, in reduction to zero of all Capital, fourth to such Investors or Banks or the Administrative Agent or the Purchaser Agents or any Indemnified Party or Affected Person, pro rata, in payment of any other accrued and unpaid amounts owed by the Seller hereunder, and fifth to the Collection Agent, if United Rentals or an Affiliate of United Rentals is the Collection Agent, in payment in full of all accrued and unpaid Collection Agent Fees. After the Capital and Yield and accrued and unpaid Collection Agent Fees with respect to a Receivable Interest in the Pool Receivables, and any other amounts payable by the Seller to the Investors, the Banks, the Administrative Agent or the Purchaser Agents hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest in the Pool Receivables and any excess cash Collateral shall be paid to the Seller for its own account.
(e) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any Dilution, or any setoff or dispute between the Originator and an Obligor due to a claim arising out of the same or any other transaction, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable Responsible Officer of the Company becomes aware that the representation and warranty in paragraph (in whole or in parth) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in full; and
(iii) if and to the amount of such Diluted Receivable. If extent the Seller is not the Collection Administrative Agent, the Seller Purchaser Agents, any Investors or any Bank or any Indemnified Party or Affected Person shall be required for any reason to pay over to an Obligor (or to any trustee, receiver, custodian or similar official in any proceeding of the Collection Agent on or prior to the next Settlement Date all amounts type contemplated by paragraph (g) of Exhibit V) any amount received by it hereunder, such amount shall be deemed not to have been so received pursuant but rather to this subsectionhave been retained by the Seller, and, accordingly, the Administrative Agent, the Purchaser Agents, the Investors or the Banks, or the Indemnified Parties or the Affected Persons, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(cf) Except as stated provided in subsection (aSection 1.04(e)(i) or (b) of this Section 2.04 ii), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
(g) The Seller shall forthwith deliver (i) to the Collection Agent an amount equal to all Collections deemed received by the Seller pursuant to Section 1.04(e)(i) or (ii) above and the Collection Agent shall hold or reinvest such Collections in accordance with Section 1.04(b), or (ii) if Collections are then being paid to the Administrative Agent or the Controlled Account directly or indirectly owned or controlled by the Administrative Agent, the Seller shall forthwith cause such deemed Collections to be paid to the Administrative Agent or such Controlled Account. So long as the Seller shall hold any Collections or deemed Collections required to be paid to the Collection Agent, the Administrative Agent, a Purchaser Agent, a Purchaser, a Bank, an Indemnified Party, or an Affected Person, it shall hold such Collections in trust (and, at the request of the Administrative Agent or any Purchaser Agent, separate and apart from its own funds and shall clearly mxxx its records to reflect such trust).
(h) With respect to each Bank that is a Nonrenewing Bank that has not been replaced by another Bank pursuant to Section 1.13 (any such Bank, a “Non-Extending Bank”), the Collection Agent shall implement the procedures set forth in this Section 1.04(h). On each Business Day prior to such Non-Extending Bank’s Bank Commitment being reduced to zero (provided that no Event of Termination has occurred and is continuing), the Collection Agent shall apply funds out of the Collections represented by the Receivable Interest received and not previously applied in the following manner:
(i) set aside and hold in trust in the Collection Account, for the benefit of the Non-Extending Banks and their related Purchasers, if any, an amount equal to all Yield and fee(s) and other payments owed under the Fee Agreements (based on the Receivable Interest at such time), in each case accrued through such day and not so previously set aside or paid. The Collection Agent shall thereafter pay to each applicable Purchaser Agent (ratably according to accrued Yield and fees and other payments owed under the Fee Agreements) on the last day of each Settlement Period for the Non-Extending Banks the amount of such accrued and unpaid fees and other payments owed under the Fee Agreements and Yield;
(ii) pay to each applicable Purchaser Agent for the account of each Non-Extending Bank, if any, related to such Purchaser Agent (ratably based on the Bank Commitment of the Non-Extending Bank at such time), and, in the event such Non-Extending Bank has any related Purchasers, for the account of such related Purchasers solely to the extent necessary to reduce any such Purchaser’s pro rata portion of the Purchase Limit to an amount that is equal to or lesser than the amount of any available Bank Commitment of any remaining Banks related to any such Purchaser at such time, from such Collections remaining after application pursuant to clause (i) above, the amount of such Bank Commitment of the Non-Extending Bank; provided that, solely for purposes of determining such Non-Extending Bank’s ratable share of such Collections, such Bank Commitment shall be deemed to remain constant from the date such Bank becomes a Non-Extending Bank until the date such Bank Commitment of the Non-Extending Bank has been paid in full; it being understood that if such day is also a Termination Date or a day on which an Event of Termination has occurred, the Bank Commitment of the Non-Extending Bank shall be recalculated at such time (taking into account amounts received by or on behalf of such Bank in respect of its Capital pursuant to this clause (ii)), and thereafter Collections shall be set aside for payment to all Investors (ratably according to the Bank Commitment of such Non-Extending Bank) pursuant to paragraph (d) above; and
(iii) reinvest the balance of such Collections in respect of Capital to the acquisition of additional undivided percentage interests pursuant to Section 1.02 hereof.
(i) Within one Business Day after the end of each Fixed Period, each Purchaser Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and fees for such Fixed Period with respect to the Receivable Interests held by such Purchaser Agent’s related Investors.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (United Rentals North America Inc), Receivables Purchase Agreement (United Rentals North America Inc)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller Originator shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection AgentReceivable (each, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectiona "Deemed Collection").
(b) Upon discovery by the Seller or the Purchaser of a breach of If on any day it is determined that any of the representations and warranties made by the Seller set forth in Section 4.01(j) 4.01 with respect to any Transferred Receivable shall not have been true when made with respect to such Transferred Receivable, the Originator shall repurchase such party shall give prompt written notice thereof Receivable on such day by paying to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price Buyer an amount equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include (the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection"Repurchase Price").
(c) The Originator shall pay to the Servicer the amount of all Deemed Collections and the amount of any Repurchase Price on or before the next Settlement Date after the date of such deemed receipt or the date of repurchase, as applicable; provided, however, that, prior to the Termination Date, such Deemed Collections and Repurchase Price may be paid by way of a credit (each a "Purchase Price Credit") against the Purchase Price otherwise payable by the Buyer hereunder in respect of Receivables arising on or after such date; provided, further that if any Purchase Price Credits remain unused upon the earlier to occur of (i) the Termination Date and (ii) the first Settlement Date to occur after the Calculation Period in which such Purchase Price Credits arose, then the Originator shall pay to the Buyer on such date in cash the amount of such unused Purchase Price Credits.
(d) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying relevant Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 2 contracts
Samples: Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc), Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc)
Settlement Procedures. (a) If On each Payment Date and on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivablethe Maturity Date, the Seller Borrower (or, following its assumption of exclusive control of the Collection Account, the Collateral Agent) shall withdraw Available Funds and any Excess Reserve Amount (to be deemed applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such amounts to have received on the applicable Person in the following order of priority:
(i) FIRST, to the Hedge Counterparty, an amount equal to any Hedge Costs (exclusive of termination payments) and any such day a Collection Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Backup Servicer so long as it has not become the Servicer hereunder, an amount equal to any accrued and unpaid Backup Servicing Fee due in respect of such Transferred Receivable Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred in SST’s capacity as Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to SST up to $17,000, monthly;
(iii) THIRD, (A) to the Servicer, an amount equal to any accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from any prior Payment Date; provided, however, if the Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; and (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses;
(iv) FOURTH, to the Deal Agent for the account of the Lender, an amount equal to the sum of any accrued and unpaid (A) Interest (up to an amount not exceeding the Interest Cap) and Breakage Costs, (B) the Program Fee, and (C) the Facility Fee, Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(v) FIFTH, during the Revolving Period, to the Deal Agent for the account of the Lender, an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vi) SIXTH, during the Amortization Period, to the Deal Agent for the account of the Lender, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(vii) SEVENTH, to the Deal Agent for the account of the Lender, an amount equal to, without double counting, any Interest Cap Carryover.
(viii) EIGHTH, to the Deal Agent for the account of the Lender and the Backup Servicer, an amount equal to, without double counting, Increased Costs, any Additional Amounts and Indemnified Amounts (provided that, with respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause (ii) above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(ix) NINTH, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) the amount necessary to cause the amount on deposit in the amount Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(x) TENTH, to the Backup Servicer, any Servicing Fee due in respect of such Diluted Receivable. If the Seller is not the Collection AgentPayment Date, the Seller shall pay to the Collection Agent on or extent not paid pursuant to clause (iii) above and any such Servicing Fee unpaid from any prior Payment Date;
(xi) ELEVENTH, to the next Settlement Date Deal Agent for the account of any other applicable Person, all remaining amounts deemed up to have been received pursuant all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(xii) TWELFTH, to this subsectionthe Borrower any remaining amounts.
(b) Upon discovery One Business Day per calendar month, the date of which is to be chosen by the Seller or Borrower, the Purchaser Borrower (or, following its assumption of a breach of any exclusive control of the representations and warranties made by Collection Account, the Seller in Section 4.01(jCollateral Agent) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ prior written notice of the Borrower to the Collateral Agent, withdraw from the Purchaser or its assignee or designee, repurchase such Transferred Receivable Collection Account an amount not to exceed the amount on deposit therein on the next succeeding Settlement Date for a repurchase price equal date of such request. The Borrower (or, following its assumption of exclusive control of the Collection Account, the Collateral Agent) shall distribute such amount to the Outstanding Balance Deal Agent for the account of the Lender, to be distributed by the Deal Agent to the Lender as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Borrower shall not be permitted (or, following its assumption of exclusive control of the Collection Account, the Collateral Agent shall not be required) to effect any such Transferred Receivable. Each repurchase withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a Transferred Receivable representative of the Servicer designated by a Responsible Officer of the Servicer has certified to the Collateral Agent and the Deal Agent in writing (which shall include electronic transmission) that it reasonably believes that at the Related Security with respect end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such Transferred Receivable. The proceeds of any such repurchase shall payment, will be deemed greater than the amount needed to be a Collection in respect of such Transferred Receivable. If make the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price payments required to be paid pursuant to this subsectionSection 2.7(a)(i) through (xi). Any such prepayment of principal shall include all accrued and unpaid Interest and any applicable Breakage Costs relating thereto.
(c) Except as stated in subsection (ai) or If on any Payment Date the amount paid pursuant to Section 2.7(a)(iv) and (bv) is insufficient to cover all amounts due thereunder on such Payment Date the Borrower (or, following its assumption of this Section 2.04 or as otherwise required by law or exclusive control of the underlying ContractReserve Account, all Collections the Collateral Agent) shall withdraw from the Reserve Account an Obligor of any Transferred Receivable shall be applied amount equal to the Transferred Receivables lesser of such Obligor shortfall and the amount of funds on deposit in the order Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or, following its assumption of exclusive control of the age of Collection Account, the Collateral Agent) shall pay such Receivables, starting with amount to the oldest such Receivable, unless such Obligor designates its Deal Agent for payment for application to specific Receivablesthe Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted ReceivableOn each Payment Date, based upon the Underlying Monthly Report and Monthly Report, the Seller Underlying Servicer shall be deemed determine, the portion of Available Funds which are Income Collections with respect to have received such Payment Date and shall so notify the Collateral Agent and the Deal Agent. On such Payment Date, the Collateral Agent shall withdraw the Lenders’ Percentage of Income Collections and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such day a Collection amounts to the applicable Person in the following order of priority:
(i) FIRST, to the Hedge Counterparty, the accrued and unpaid Hedge Costs (exclusive of Hedge Breakage Costs) in respect of such Transferred Receivable Payment Date, if any, and any unpaid Hedge Costs (exclusive of Hedge Breakage Costs) from any prior Payment Date;
(ii) SECOND, all remaining amounts, to the Deal Agent for the account of the Lenders, an amount equal to the sum of any accrued and unpaid (A) Yield and Breakage Costs and (B) Increased Costs, Indemnified Amounts and any Additional Amounts due in the amount respect of such Diluted Receivable. If the Seller is not the Collection AgentPayment Date and any such amounts unpaid from any prior Payment Date;
(iii) THIRD, the Seller shall pay all remaining amounts, to the Collection Deal Agent on or prior to for the next Settlement Date all account of the Lenders, any remaining amounts deemed to have been received payable pursuant to this subsection.Section 2.7(a) as the Usage Fee;
(b) Upon discovery by On each Payment Date, the Seller or Underlying Servicer shall determine the Purchaser amount of a breach of any of Available Funds remaining after the representations and warranties made by the Seller distributions set forth in Section 4.01(j2.7(a) with respect to any Transferred Receivableand shall so notify the Collateral Agent and the Deal Agent. On such Payment Date, the Collateral Agent shall withdraw all such party shall give prompt written notice thereof amounts from the Collection Account and allocate and distribute such amounts to the other partyapplicable Person, as soon as practicable in the following order of priority:
(i) FIRST, to the Collateral Agent, any amounts due but unpaid pursuant to Section 2.12(d) and in any event within three Business Days following such discovery. The Seller shallthe Collateral Agent Fee Letter;
(ii) SECOND, upon not less than two Business Days’ notice from all remaining amounts, to the Purchaser or its assignee or designeeDeal Agent for payment to the Lenders, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price an amount equal to the Outstanding Balance Required Principal Distribution;
(iii) THIRD, all remaining amounts, to the Hedge Counterparty, any accrued and unpaid Defaulting Hedge Breakage Costs in respect of such Transferred Receivable. Each repurchase Payment Date and any unpaid Defaulting Hedge Breakage Costs from any prior Payment Date;
(iv) FOURTH, from all remaining amounts, to the Borrower, an amount equal to 5.0% of a Transferred Receivable shall include the Related Security Principal Collections with respect to such Transferred Receivable. The proceeds of Payment Date;
(v) FIFTH, from all remaining amounts, to the Hedge Counterparty, any such repurchase shall be deemed to be a Collection remaining accrued and unpaid Hedge Breakage Costs in respect of such Transferred Receivable. If the Seller is not the Collection AgentPayment Date and any remaining unpaid Hedge Breakage Costs from any prior Payment Date; and
(vi) SIXTH, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionBorrower, any remaining amounts.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 2 contracts
Samples: Loan and Security Agreement (Americredit Corp), Loan and Security Agreement (Americredit Corp)
Settlement Procedures. (a) If The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of the Purchasers’ Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Investment and not previously set aside, second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers’ Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the Administrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers’ Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers, such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date, Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Worthington or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Worthington (or such Affiliate) that such right is revoked, (or such Affiliate) Worthington may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee. On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first if Worthington or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second to each Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Investment, respectively, fourth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than Worthington or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder and, fifth, to the Servicer’s own account (if the Servicer is Worthington or an Affiliate thereof) in payment in full of the Aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in Section 1(g) or (in whole or in partn) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
clause (c) Except as stated in subsection (ai) or (b) of this Section 2.04 ii), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days’ prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the (i) next Settlement Date with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (ii) such other date approved by the Administrator with at least five Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $50,000,000 and shall be in an integral multiple of $1,000,000 (unless the Aggregate Investment shall have been reduced to zero); and
(B) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Worthington Industries Inc), Receivables Purchase Agreement (Worthington Industries Inc)
Settlement Procedures. (a) If The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each Business Day on which Collections of Pool Receivables are received by the Seller or Servicer or are deposited into the Lock-Box Accounts, transfer such Collections therefrom and deposit such Collections into the Collection Account. With respect to such Collections on such day and with respect to any Collection transferred to the Collection Account on such day pursuant to the last paragraph of Section 1.4(e), the Servicer shall:
(i) set aside and hold in the Collection Account for the benefit of the Issuer, out of the percentage of such Collections represented by the Purchased Interest, FIRST an amount equal to the Discount accrued through such day for each Portion of Capital and not previously transferred, SECOND, an amount equal to the fees set forth in the Fee Letter accrued through such day for the Purchased Interest and not previously transferred, and THIRD, to the extent funds are available therefor, an amount equal to the Issuer's Share of the Servicing Fee accrued through such day and not previously transferred; and
(ii) subject to SECTION 1.4 (f), if such day is not a Termination Day, remit to the Seller, on behalf of the Issuer, the remainder of the percentage of such Collections, represented by the Purchased Interest, to the extent representing a return on the Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Purchased Interest shall be automatically recomputed pursuant to SECTION 1.3; IT BEING UNDERSTOOD, that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Purchased Interest on such day, and if such Purchased Interest shall exceed 100% on such day, such Collections shall not be remitted to the Seller but shall be set aside and held in the Collection Account for the benefit of the Issuer in accordance with PARAGRAPH (iii) below;
(iii) if such day is a Termination Day (or if such day is a day on which the Purchased Interest exceeds 100%), (A) set aside and hold in the Collection Account for the benefit of the Issuer the entire remainder of the percentage of the Collections represented by the Purchased Interest (or such amount set forth in PARAGRAPH (ii) above); PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are so set aside on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Administrator, such previously set aside amounts shall, to the extent representing a return on the Capital, be reinvested in accordance with the preceding PARAGRAPH (ii) on the day of such subsequent satisfaction or waiver of conditions, and (B) set aside and hold in the Collection Account for the benefit of the Issuer the entire remainder of the Collections in the Collection Account represented by the Seller's Share of the Collections, if any; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are so set aside on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Administrator, such previously set aside amounts shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during the times when amounts are required to be reinvested in accordance with the foregoing PARAGRAPH (ii) or the proviso to PARAGRAPH (iii), release to the Seller (subject to SECTION 1.4(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be set aside in the Collection Account pursuant to PARAGRAPH (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses (including the Servicing Fee to the extent such Servicing Fee has not already been paid) of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date:
(i) Collections held on deposit in the Collection Account for the benefit of the Issuer pursuant to SECTION 1.4(b)(i) in respect of accrued Discount and accrued and unpaid Fees;
(ii) Collections held on deposit in the Collection Account for the benefit of the Issuer pursuant to SECTION 1.4(f); and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Collection Account for the benefit of the Issuer pursuant to SECTION 1.4(b)(iii) and (y) the aggregate amount of Capital on such date. The Servicer shall deposit to its own account from Collections held on deposit in the Collection Account pursuant to SECTION 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Administration Account pursuant to CLAUSE (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, FIRST to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital and accrued and unpaid Fees, and SECOND, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to CLAUSE (b)(i) and has not retained such amounts pursuant to CLAUSE (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer's Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, FIRST to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital and accrued and unpaid Fees, SECOND to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), THIRD, if Keebler or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees, FOURTH, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than Keebler or an Affiliate thereof) have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller under this Agreement and, FIFTH, unless such amount has been retained by the Servicer pursuant to CLAUSE (c), to the Servicer (if the Servicer is Keebler or an Affiliate thereof) in payment in full of the Issuer's Share of all accrued Servicing Fees. After the Capital, Discount, and Fees with respect to the Purchased Interest, Servicing Fees, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by any Originator, Hollow Tree, the Servicer, the Seller or any Affiliate of the Seller, or any setoff or dispute between any Originator, Hollow Tree, the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in Section 1(g) or (in whole or in partm) a Diluted of EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts full (Collections deemed to have been received pursuant to this subsection.
CLAUSE (bi) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (bii) of this Section 2.04 or paragraph (e) are hereinafter sometimes referred to as "Deemed Collections");
(iii) except as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official pursuant to an Event of Bankruptcy) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof. On or before the last day of each Reporting Period that contains one or more days on which Seller is deemed to have received a Collection pursuant to this SECTION 1.4(e), Seller shall transfer an amount equal to the aggregate amount of such Deemed Collections to the Collection Account and the Servicer shall distribute such transferred amount in the manner set forth in SECTION 1.4(c), as if such transferred amount actually had been received by Seller or Servicer on the date of such transfer from the Obligors of such Pool Receivables and as if such transferred amount actually had been deposited into a Lockbox Account on the date of such transfer.
(f) If at any time the Seller shall wish to cause the reduction of Capital of the Purchased Interest (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer at least two Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in the Collection Account for the benefit of the Issuer, for payment to the Administrator on the next Settlement Date immediately following the current Settlement Period, and the Capital of the Purchased Interest shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $5,000,000 and shall be an integral multiple of $1,000,000, and the entire Capital of the Purchased Interest after giving effect to such reduction shall be not less than $50,000,000 and shall be in an integral multiple of $1,000,000; and
(B) the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, transfer such Collections from the Lock-Box Accounts and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation Account, set aside for the benefit of the Purchaser, out of the percentage of such Collections represented by the Participation, FIRST an amount equal to the Discount accrued through such day for each Portion of Investment and not previously set aside and SECOND, to the extent funds are available therefor, an amount equal to the Servicing Fee (if the Originator or any Affiliate thereof is not the Servicer), the Commitment Fee and the Program Fee accrued through such day for the Participation and not previously set aside; and
(ii) subject to SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Purchaser, the remainder of the percentage of such Collections, represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Participation shall be automatically recomputed pursuant to SECTION 1.3; IT BEING UNDERSTOOD, that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not be remitted to the Seller but shall be transferred to the Liquidation Account for the benefit of the Purchaser in accordance with PARAGRAPH (iii) below;
(iii) if such day is a Termination Day, (A) transfer to the Liquidation Account for the Purchaser the entire remainder of the percentage of the Collections represented by the Participation; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Agent, such previously set aside amounts shall, to the extent representing a return on the Investment, be reinvested in accordance with the preceding PARAGRAPH (ii) on the day of such subsequent satisfaction or waiver of conditions, and (B) transfer to the Liquidation Account for the Purchaser the entire remainder of the Collections in the Collection Account represented by the Seller's share of the Collections, if any; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Agent, such previously set aside amounts shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing PARAGRAPH (ii) or the proviso to PARAGRAPH (iii), release to the Seller (subject to SECTION 1.4(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be transferred to the Liquidation Account pursuant to PARAGRAPH (I) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such other account designated by the Agent), on the last day of each Settlement Period relating to a Portion of Investment:
(i) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(i) in respect of accrued Discount and the Program Fees and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to SECTION 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(iii) and (y) such Portion of Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Liquidation Account pursuant to SECTION 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant to SECTION 1.4(c) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, FIRST to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, SECOND, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and THIRD, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to SECTION 1.4(b)(i), to the Servicer (payable in arrears on the last day of each calendar month) in payment in full of accrued Servicing Fees so set aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day, FIRST to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, SECOND to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in payment in full of such Portion of Investment, FOURTH, if SDW or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Investment, and FIFTH, if the Investment and accrued Discount with respect to each Portion of Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate or other adjustment made by the Originator, Seller or Servicer, or any setoff or dispute between the Seller, Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in PARAGRAPHS (in whole h) or in part(o) a Diluted of EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
PARAGRAPH (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 SECTION 1.4(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Investment of the Participation), the Seller may do so as follows:
(i) the Seller shall give the Agent at least five Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Investment not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Liquidation Account for the benefit of the Purchaser, for payment to the Agent on the last day of the current Settlement Period relating to such Portion of Investment, and the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $500,000, and the entire Investment of the Participation after giving effect to such reduction shall be not less than $1,000,000,
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to SECTION
Appears in 1 contract
Samples: Receivables Purchase Agreement (Warren S D Co /Pa/)
Settlement Procedures. (a) If The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day and not previously set aside, second, an amount equal to the Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder may, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables and the Related Rights; provided, that if the Purchased Interest would exceed 100%, then the Servicer shall not remit such remainder to the Seller or reinvest it, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this clause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Settlement Date in accordance with Section 1.4(c),
(iii) if such day is a Termination Day, set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections; provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 3 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents, such previously set-aside amounts shall be remitted to the Seller on the day of such subsequent satisfaction or waiver of conditions, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside pursuant to clauses (i), (ii) and (iii) above plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if Xxxxx or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Xxxxx (or such Affiliate) that such right is revoked, Xxxxx (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Yield Period, the Administrator will notify the Servicer by email communication of the amount of Discount accrued with respect to each Portion of Capital during such Yield Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, and on which the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, or on a day when the Purchased Interest exceeds 100%, first if Xxxxx or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, or (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%; it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or if a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Xxxxx or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder and sixth, to the Servicer’s own account (if the Servicer is Xxxxx or an Affiliate thereof) in payment in full of the aggregate of the Purchaser’s Share of all accrued Servicing Fees. After the Capital (on and after a day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any Transferred Receivable becomes (of the representations or warranties in whole Sections 1(j) or in part3(a) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount full Outstanding Balance of such Diluted Receivable. If Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Seller is not Administrator at such time) for the Collection Agent, benefit of the Seller shall pay Purchasers and their assigns and for application pursuant to the Collection Agent on or prior to the next Settlement Date all amounts Section 1.4(b) (Collections deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (aSections 1.4(e)(i) or (bii) of this Section 2.04 are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice substantially in the form of Annex E with any changes as have been approved by the parties thereto (each, a “Paydown Notice”) (A) by no later than 12:00 p.m. on the date of such reduction for any reduction of the Aggregate Capital less than or equal to $25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall not be less than $100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the sum of the Aggregate Capital and the Adjusted LC Participation Amount after giving effect to such reduction shall not be less than the Minimum Usage Amount; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Kelly Services Inc)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of the Receivable Interest Percentage.
(b) In the event that both S&P and Moody's shall lower the Originator's long term public unsecured debt securities rating to below BBB, in the case of S&P, and Baa2, in the case of Moody's, within two Business Days following its receipt of any item of payment with respect to the Pool Receivables (including, without limitation, cash, checks, money orders, wire transfers and automated clearing house payments), the Collection Agent shall deposit Collections into the Collection Account. Except during the continuance of an Event of Termination or Incipient Event of Termination or as otherwise required in this Agreement, funds received in the Collection Account shall be transferred to an account designated by the Seller for the benefit of the Collection Agent. The Collection Agent shall, on each day on which it receives any such funds:
(i) set aside on its books and hold in trust for the Purchasers or the Banks that hold such Receivable Interest out of the applicable Receivable Interest Percentage of such Collections an amount equal to the Yield and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Purchasers or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest Percentage, to the extent representing a return of Capital, by recomputation of such Receivable Interest Percentage pursuant to Section 2.04;
(iii) if such day is a Liquidation Day for such Receivable Interest, set aside, hold in trust and segregate for the Purchasers or the Banks that hold such Receivable Interest the entire remainder of such percentage of Collections; provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter during such Settlement Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), apply any Collections in excess of such amounts or in excess of the amounts that are required to be set aside pursuant to subsection (i) above to the payment of any "Purchase Price" (including any "Deferred Purchase Price", as such terms are defined in the Originator Purchase Agreement) then due and release the balance, if any, to the Seller.
(c) On each Settlement Date, the Collection Agent, on behalf of the Seller, shall deposit funds equal to the lesser of (x) the Collections received or deemed received during the preceding Settlement Period which are held or required to be held for the benefit of the Purchasers or the Banks pursuant to Section 2.06(b) or 2.06(e) and (y) an amount sufficient to make the distributions set forth in clauses (i) and (ii) below in account #4070-3544 at Citibank or to such other account designated by the Agent therefor (provided, however, that so long as the Collection Agent is the Originator and no Event of Termination or Incipient Event of Termination has occurred, the Collection Agent may, on the last day of each month following each Settlement Date, retain from such funds an amount equal to the accrued Collection Agent Fee as of such Settlement Date, instead of including such amount in the deposit made on such Settlement Date.) Upon receipt of such funds, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Purchasers or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Yield and then to the Collection Agent in payment in full of all accrued Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Purchasers or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Yield, second to such Purchasers or Banks in reduction to zero of all Capital, third to such Purchasers, Banks or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital and Yield and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers, the Banks or the Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall revert to and be paid to the Seller for its own account.
(e) For the purposes of this Section 2.06:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount, other promotional adjustment or other retroactive credit made by the Seller or the Originator, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes (of the representations or warranties in whole or in partSection 4.01(i) a Diluted is no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full; and
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
paragraph (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 subsection 2.06(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
(f) If and to the extent that the Agent, any Purchaser or any Bank shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Purchaser, the Agent or such Bank, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Northeast Utilities System)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection. Notwithstanding the foregoing, if on any day any Transferred Receivable, the Obligor of which is a CEG Entity, is satisfied in full or in part by the posting of an inter-company accounting entry in favor of the Seller, the Purchaser shall be deemed to have received on such day a credit (a "Purchase Price Credit") in the amount of such accounting entry. If for any reason the Purchaser ceases to purchase Receivables from the Seller under this Agreement, the Seller shall pay to the Purchaser the amount of all then unused Purchase Price Credits.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying relevant Contract, or as otherwise specified by such Obligor, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. Agent may assume that each Lender will make available to Agent such Lender’s Pro Rata Share of the Loan requested or otherwise made on such day and Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of Borrower on such day. If Agent makes such corresponding amount available to Borrower and such corresponding amount is not in fact made available to Agent by such Lender, Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to Agent at the Federal Funds Rate for each day during such period (aas published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. New York City time on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) If on and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Loans. During the period in which such Lender has not paid such corresponding amount to Agent, notwithstanding anything to the contrary contained in this Agreement or any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivableof the other Financing Agreements, the Seller amount so advanced by Agent to or for the benefit of Borrower shall, for all purposes hereof, be a Loan made by Agent for its own account. Upon any such failure by a Lender to pay Agent, Agent shall promptly thereafter notify Borrower of such failure and Borrower shall pay such corresponding amount to Agent for its own account within five (5) Business Days of Borrower’s receipt of such notice. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender’s behalf, or any Lender who fails to pay any other amount owing by it to Agent, is a “Defaulting Lender”. Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to have received on be a “Lender” and such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase Lender’s Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Collection in respect of Defaulting Lender until such Transferred Receivabledefault is cured. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) The operation of this Section 2.04 shall not be construed to increase or as otherwise required by law or affect the underlying Contract, all Collections from an Obligor Commitment of any Transferred Receivable shall be applied to Lender, or relieve or excuse the Transferred Receivables performance by Borrower of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivablesduties and obligations hereunder.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Trailer Bridge Inc)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors that hold such Receivable Interests all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); PROVIDED that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) The Collection Agent shall deposit into the Agent's Account, on the Settlement Date for each Receivable Interest, Collections held for the Investors that relate to such Receivable Interest pursuant to Section 2.04(b).
(d) Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees, second to such Investors in reduction to zero of all Capital, third to such Investors or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors or the Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned merchandise or services, or any cash discount, discount for quick payment or other adjustment made by the Seller or an Originator, or any setoff, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes (of the representations or warranties contained in whole or in partSection 4.01(h) a Diluted is no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Investors shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Investors, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article IV of this Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections into Collection Accounts. Subsequently, the Collection Agent shall forthwith cause all such Collections received in the Collection Accounts to be transferred into the Controlled Account within one Business Day; provided that, if the balance in any such Collection Account is less than $50,000, the Collection Agent shall not be obligated to transfer any amounts from such Collection Account as long as the account balance remains less than $50,000 and also as long as the balance is transferred according to a standing order (a “Threshold Basis”). Additionally, with respect to Collection Accounts that have balances less than $50,000 and whose balances are not transferred on a Threshold Basis, the Collection Agent will transfer funds manually from such accounts on a weekly basis. Any Amounts transferred pursuant to this Section 1.04(a) may be in an amount that leaves up to $10,000 remaining in each such Collection Account. The Seller shall provide to the Collection Agent (if other than United Rentals) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest in the Pool Receivables.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received or deemed received by it pursuant to this Agreement with respect to any Receivable Interest in the Pool Receivables:
(i) set aside and hold in trust (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited) for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables, out of the percentage of such Collections attributable to such Receivable Interest in the Pool Receivables, an amount equal to the Yield, all fees and payments due pursuant to each of the Fee Agreements, and the Collection Agent Fee accrued through such day for such Receivable Interest in the Pool Receivables and not previously set aside;
(ii) if such day is not a Liquidation Day, reinvest with the Seller, on behalf of the Investors or the Banks that hold such Receivable Interest in the Pool Receivables, the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest in the Pool Receivables pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust the entire remainder of such percentage of Collections for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited); provided, however, that if the Liquidation Day resulted solely by reason of the non-satisfaction of the initial purchase conditions (as set forth in paragraph 1 of Exhibit II) and such conditions are subsequently satisfied or are waived by the Purchaser Agents and written notice is provided to the Rating Agencies rating the Commercial Paper, any amounts that have been set aside and held in trust pursuant to this clause (iii) shall be reinvested in accordance with the preceding clause (ii); provided that the Event of Termination identified as paragraph (g) of Exhibit V cannot be waived by the Purchaser Agents; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing clause (ii) or the first proviso to clause (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to clause (i) above.
(c) On the Settlement Day for a Receivable Interest in the Pool Receivables the Collection Agent shall deposit ratably according to the amount then owed to each Investor or Bank into each Purchaser Agent’s Account Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i) and (iii).
(d) Upon receipt of funds deposited into its Purchaser Agent’s Account, the related Purchaser Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield, all fees and payments due pursuant to each of the Fee Agreements, and second to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees if the Collection Agent is not United Rentals or an Affiliate of United Rentals, second to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield and all fees and payments due pursuant to each of the Fee Agreements, third to such Investors or Banks, pro rata, in reduction to zero of all Capital, fourth to such Investors or Banks or the Administrative Agent or the Purchaser Agents or any Indemnified Party or Affected Person, pro rata, in payment of any other accrued and unpaid amounts owed by the Seller hereunder, and fifth to the Collection Agent, if United Rentals or an Affiliate of United Rentals is the Collection Agent, in payment in full of all accrued and unpaid Collection Agent Fees. After the Capital and Yield and accrued and unpaid Collection Agent Fees with respect to a Receivable Interest in the Pool Receivables, and any other amounts payable by the Seller to the Investors, the Banks, the Administrative Agent or the Purchaser Agents hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest in the Pool Receivables and any excess cash Collateral shall be paid to the Seller for its own account.
(e) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any Dilution, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable Responsible Officer of the Company becomes aware that the representation and warranty in paragraph (in whole or in parth) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in full; and
(iii) if and to the amount of such Diluted Receivable. If extent the Seller is not the Collection Administrative Agent, the Seller Purchaser Agents, any Investors or any Bank or any Indemnified Party or Affected Person shall be required for any reason to pay over to an Obligor (or to any trustee, receiver, custodian or similar official in any proceeding of the Collection Agent on or prior to the next Settlement Date all amounts type contemplated by paragraph (g) of Exhibit V) any amount received by it hereunder, such amount shall be deemed not to have been so received pursuant but rather to this subsectionhave been retained by the Seller, and, accordingly, the Administrative Agent, the Purchaser Agents, the Investors or the Banks, or the Indemnified Parties or the Affected Persons, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(cf) Except as stated provided in subsection (aSection 1.04(e)(i) or (b) of this Section 2.04 ii), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
(g) The Seller shall forthwith deliver (i) to the Collection Agent an amount equal to all Collections deemed received by the Seller pursuant to Section 1.04(e)(i) or (ii) above and the Collection Agent shall hold or reinvest such Collections in accordance with Section 1.04(b), or (ii) if Collections are then being paid to the Administrative Agent or the Controlled Account directly or indirectly owned or controlled by the Administrative Agent, the Seller shall forthwith cause such deemed Collections to be paid to the Administrative Agent or such Controlled Account. So long as the Seller shall hold any Collections or deemed Collections required to be paid to the Collection Agent, the Administrative Agent, a Purchaser Agent, a Purchaser, a Bank, an Indemnified Party, or an Affected Person, it shall hold such Collections in trust (and, at the request of the Administrative Agent or any Purchaser Agent, separate and apart from its own funds and shall clearly xxxx its records to reflect such trust).
(h) With respect to each Purchaser that is a Nonrenewing Purchaser that has not been replaced by another Purchaser pursuant to Section 1.13 (any such Purchaser a “Non-Extending Purchaser”), the Collection Agent shall implement the procedures set forth in this Section 1.04(h) (a “Partial Liquidation”). On each Business Day prior to such Non-Extending Purchaser’s Bank Commitment being reduced to zero (provided that no Event of Termination has occurred and is continuing), the Collection Agent shall apply funds out of the Collections represented by the Receivable Interest received and not previously applied in the following manner:
(i) set aside and hold in trust in the Collection Account, for the benefit of the Non-Extending Purchasers an amount equal to all Yield and fee(s) and other payments owed under the Fee Agreements (based on the Receivable Interest at such time), in each case accrued through such day and not so previously set aside or paid. The Collection Agent shall thereafter pay to each applicable Purchaser Agent on the last day of each Settlement Period for the Non-Extending Purchasers (ratably according to accrued Yield and fees other payments owed under the Fee Agreements) the amount of such accrued and unpaid fees other payments owed under the Fee Agreements and Yield;
(ii) pay to each applicable Purchaser Agent for the account of each Non-Extending Purchaser, if any, related to such Purchaser Agent (ratably based on the Bank Commitment of the Bank related to such Non-Extending Purchasers at such time), and, for the account of any related Purchasers solely to the extent necessary to reduce such Purchaser’s pro rata portion of the Purchase Limit to an amount that is equal to or lesser than the amount of any available Bank Commitment of any remaining Banks related to such Purchaser at such time, from such Collections remaining after application pursuant to clause (i) above, the amount of such Bank Commitment of the Bank related to such Non-Extending Purchaser; provided that, solely for purposes of determining such Non-Extending Purchaser’s ratable share of such Collections, such Bank Commitment shall be deemed to remain constant from the date such Purchaser becomes a Non-Extending Purchaser until the date such Bank Commitment of the Bank related to such Non-Extending Purchaser has been paid in full; it being understood that if such day is also a Termination Day or a day on which an Event of Termination has occurred, the Bank Commitment of the Bank related to such Non-Extending Purchaser shall be recalculated at such time (taking into account amounts received by or on behalf of such Purchaser in respect of its Capital pursuant to this clause (ii)), and thereafter Collections shall be set aside for payment to all Purchasers (ratably according to the Bank Commitment of the Bank related to such Non-Extending Purchaser) pursuant to paragraph (d) above; and
(iii) reinvest the balance of such Collections in respect of Capital to the acquisition of additional undivided percentage interests pursuant to Section 1.02 hereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United Rentals Inc /De)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection AgentServicer, the Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyPurchaser, the Servicer and the Seller, as soon as practicable and in any event within three (3) Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Servicer or the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection AgentServicer, the Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (DST Systems Inc)
Settlement Procedures. (a) If The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each Business Day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer or are deposited into the Lock-Box Accounts, transfer such Collections therefrom and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside within the Collection Account for the benefit of the Issuer, out of the percentage of such Collections represented by the Purchased Interest, first an amount equal to the Discount accrued through such day for each Portion of Capital and not previously transferred, second, an amount equal to all accrued and unpaid Fees not previously transferred, and third, to the extent funds are available therefor, an amount equal to the Issuer's Share of the Servicing Fee accrued through such day and not previously transferred; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Issuer, the remainder of the percentage of such Collections, represented by the Purchased Interest, to the extent representing a return on the Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Purchased Interest shall be automatically recomputed pursuant to Section 1.3; it being understood, that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Purchased Interest on such day, and if such Purchased Interest shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not be remitted to the Seller but shall be set aside within the Collection Account for the benefit of the Issuer in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, set aside within the Collection Account for the benefit of the Issuer the entire remainder of the percentage of the Collections represented by the Purchased Interest; provided that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Collection Account on any day any Transferred Receivable becomes (in whole or in part) a Diluted ReceivableTermination Day and thereafter, the Seller shall conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Administrator, such previously transferred amounts shall, to the extent representing a return on the Capital, be deemed to have received reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) if such day is not a Collection Termination Day, release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of such Transferred Receivable (x) any amounts that are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), (y) the amounts that are required to be set aside pursuant to paragraph (i) above and (z) in the amount of such Diluted Receivable. If event the Seller is not the Collection AgentServicer, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations reasonable and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable appropriate out-of-pocket costs and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance expenses of such Transferred Receivable. Each repurchase Servicer of a Transferred Receivable shall include servicing, collecting and administering the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionPool Receivables.
(c) Except as stated in subsection The Servicer shall deposit into the Administration Account (aor such other account designated by the Administrator), on each Settlement Date, Collections held for the Issuer pursuant to clause (b)(i) or (bf) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of this Section 2.04 1.4; provided, that if BAX or as otherwise required by law an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified BAX (or such Affiliate) that such right is revoked, BAX (or such Affiliate) may retain the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order portion of the age Collections set aside pursuant to clause (b)
(i) that represents the Issuer's Share of the Servicing Fee. On the last day of each Yield Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesYield Period or portion thereof.
Appears in 1 contract
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which originated such Receivable shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The applicable Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, Collection of the Seller Pool Receivables shall be deemed to have received on such day administered by a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall pay provide to the Collection Agent (if other than the Seller) on or prior to a timely basis all information needed for such administration, including notice of the next Settlement Date all amounts deemed to have been received pursuant to this subsectionoccurrence of any Liquidation Day.
(b) Upon discovery The Collection Agent shall, on each day on which Collections of Pool Receivables are received by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(jit:
(i) with respect to any Transferred Receivableeach Receivable Interest, set aside and hold in trust (and, at the request of the 24 30 Agent, segregate) for the Investors or the Banks that hold such party shall give prompt written notice thereof Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the other partyYield, as soon as practicable Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in any event within three Business Days following trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such discovery. The Seller shall, upon not Receivable Interests (x) if such day is a Liquidation Day for less than two Business Days’ notice from all of the Purchaser or its assignee or designeeReceivable Interests, repurchase the percentage of such Transferred Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the next succeeding Termination Date, and thereafter prior to the Settlement Date for a repurchase price equal such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the Outstanding Balance extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such Transferred Receivable. Each repurchase subsequent satisfaction or waiver of a Transferred Receivable shall include the Related Security with respect conditions; and
(iv) release to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionfor its own account any remaining Collections.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law The Collection Agent shall deposit into the Agent's Account, on the Settlement Date for each Receivable Interest, Collections held for the Investors or the underlying ContractBanks that relate to such Receivable Interest pursuant to Section 2.04(b).
(d) Upon receipt of funds deposited into the Agent's Account, all Collections from an Obligor of any Transferred Receivable the Agent shall be applied distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.Investors or the
Appears in 1 contract
Samples: Receivables Purchase Agreement (Centex Construction Products Inc)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall segregate and hold all Collections in trust for the benefit of the Seller and the Purchaser and, within one Business Day of the receipt (or deemed receipt) of Collections of Pool Receivables by the Seller or Servicer, deposit such Collections into a Deposit Account. Servicer shall on the day any funds deposited in a Deposit Account become available transfer such funds to the Collection Account. With respect to such Collections on the day deposited into the Collection Account, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation Account, set aside for the benefit of the Purchaser, out of the percentage of such Collections represented by the Participation, first an amount equal to the Discount accrued through such day for each Portion of Investment and not previously set aside and second, to the extent funds are available therefor, an amount equal to the Servicing Fee (if the Originator or any Affiliate thereof is not the Servicer), and third the Program Fee accrued through such day for the Participation and not previously set aside; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Purchaser, the remainder of the percentage of such Collections, represented by the Participation; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Participation shall be automatically recomputed pursuant to Section 1.3; it being understood, that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% of the sum of the Net Receivables Pool Balance on such day plus the amount on deposit in the Liquidation Account (other than amounts transferred thereto from the Collection Account to pay Discount, the Servicing Fee and the Program Fee pursuant to the preceding paragraph (i)), such Collections shall not be remitted to the Seller but shall be transferred to the Liquidation Account for the benefit of the Purchaser in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, (A) transfer to the Liquidation Account for the Purchaser the entire remainder of the percentage of the Collections represented by the Participation; provided that so long as the Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such previously transferred amounts shall, to the extent still on deposit in the Liquidation Account, be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, and (B) transfer to the Liquidation Account for the Purchaser the entire remainder of the Collections in the Collection Account represented by the Seller's share of the Collections, if any; provided that so long as the Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such previously transferred amounts to the extent still on deposit in the Liquidation Account, shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of (x) such reinvested amounts, (y) the amounts that are required to be transferred to the Liquidation Account pursuant to paragraph (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such other account designated by the Agent), on the last day of each Settlement Period relating to a Portion of Investment:
(i) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(i) in respect of accrued Discount and the Program Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant to Section 1.4(c) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second, to the Purchaser in payment of accrued and unpaid Program Fees, and third, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i), to the Servicer (payable in arrears on the last day of each calendar month) in payment in full of accrued Servicing Fees so set aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second to the Purchaser in payment of accrued and unpaid Program Fees, third, to the Purchaser in payment in full of such Portion of Investment, fourth, if AFC or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Investment, and fifth, if the Investment and accrued Discount with respect to each Portion of Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than AFC or any of its Affiliates) have been paid in full, to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and then to the Servicer (if the Servicer is AFC or any of its Affiliates) in payment in full of all accrued Servicing Fees. After the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any discount, rebate or other adjustment made by the Originator, Seller or Servicer, or any setoff or dispute between the Seller, Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes (of the representations or warranties in whole paragraphs A.(h) or in partA.(o) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
paragraph (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 1.4(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied in accordance with the Contract with such Obligor and the Credit and Collection Policy; and
(iv) if and to the Transferred Receivables extent the Agent or the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Investment of the Participation), the Seller may do so as follows:
(i) the Seller shall give the Agent at least two Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Investment not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the order Liquidation Account for the benefit of the age Purchaser, for payment to the Agent on the last day of the current Settlement Period relating to such ReceivablesPortion of Investment, starting and the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. unless otherwise agreed by the Agent the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Investment (if any) of the Participation after giving effect to such reduction shall be not less than $2,000,000,
B. the Seller shall use reasonable efforts to choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to Section 1.4(f)(i), to the Portion of Investment with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivablesshortest remaining Yield Period.
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Samples: Receivables Purchase Agreement (Minnesota Power & Light Co)
Settlement Procedures. (a) If on any day any a Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which sold such Receivable to the Purchaser shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the such Seller is not the Collection Agenta Servicer, the such Seller shall pay to the Collection Agent Servicer of Transferred Receivables transferred by such Seller on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection, provided, that, so long as an Event of Termination has not occurred and is not continuing, such Seller shall have no obligation to make any payment in respect of deemed Collections so long as the sum of the Receivable Interests (as defined in the Sale Agreement), each expressed as a percentage, shall continue to be less than or equal to the Maximum Purchaser Interest (as defined in the Sale Agreement).
(b) Upon discovery by the any Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j4.01(i) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyPurchaser or the relevant Seller, as the case may be, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the such Seller is not the Collection Agenta Servicer, the such Seller shall pay to the Collection Agent Servicer of Transferred Receivables transferred by such Seller on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
(d) Deemed collections with respect to any Transferred Receivable payable by any Seller under this Section 2.04 shall be paid in Dollars.
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Settlement Procedures. (a) If on any day any Transferred Receivable Purchased Asset becomes (in whole or in part) a Diluted ReceivableReceivable or a Diluted Participation Interest (as the case may be), the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable Purchased Asset in the amount of such Diluted ReceivableReceivable or Diluted Participation Interest (as the case may be). If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred ReceivablePurchased Asset, such party shall give prompt written notice thereof to the other partyPurchaser, the Collection Agent, and the Seller, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable Purchased Asset on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred ReceivablePurchased Asset. Each repurchase of a Transferred Receivable Purchased Asset shall include the Related Security with respect to such Transferred ReceivablePurchased Asset. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred ReceivablePurchased Asset. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Purchased Receivable or Participated Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
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Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, Collection of the Seller Pool Receivables shall be deemed to have received on such day a Collection administered by the Servicer in accordance with the terms of such Transferred Receivable in the amount of such Diluted Receivablethis Agreement. If the Seller is not the Collection Agent, the Seller The Borrower shall pay provide to the Collection Agent Servicer on or prior to the next Settlement Date a timely basis all amounts deemed to have been received pursuant to this subsectioninformation needed for such administration.
(b) Upon discovery The Servicer shall, on each day on which Collections of Pool Receivables are received by the Seller Borrower or the Purchaser of a breach of any of Servicer, transfer such Collections from the representations Lock-Box Accounts and warranties made deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall to the extent permitted by the Seller in Section 4.01(japplicable agreement:
(i) with respect to any Transferred Receivable, such party shall give prompt written notice thereof transfer from the Collection Account to the other partyLiquidation Account, as soon as practicable and in any event within three Business Days following out of such discovery. The Seller shallCollections, upon not less than two Business Days’ notice from the Purchaser or its assignee or designeefirst, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price an amount equal to the Outstanding Balance interest accrued through such day for each Loan and not previously deposited therein and second, an amount equal to the Servicing Fee, the Commitment Fee, the Letter of Credit Fees and any costs or expenses set forth in Section 4.3, 4.4, 4.5 or 4.6, in each case accrued through such day and not previously deposited therein (collectively, the amounts described in clause first and second are referred to herein as, the "Carrying Costs"); and 98 107
(ii) if such day is not a Amortization Day, remit to the Borrower the remainder of such Transferred Receivable. Each repurchase Collections for application in accordance with Section 11.1(h); provided, however, that if on such day the Aggregate Outstanding Amount exceeds the Borrowing Base (such excess being referred to herein as a "Borrowing Base Deficiency"), then such remainder of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase Collections shall be deemed transferred from the Collection Account to be a Collection the Liquidation Account until the sum of the Borrowing Base plus the amount on deposit in the Liquidation Account (other than amounts on deposit therein in respect of the Carrying Costs pursuant to clause 11.1(b)(i) above) at least equals the Aggregate Outstanding Amount; provided, further, that if on any day (other than an Amortization Day) such Transferred Receivable. If the Seller is not the Collection AgentBorrowing Base Deficiency shall no longer exist, the Seller Servicer shall pay remit to the Collection Agent Borrower any amounts remaining on or prior deposit in the Liquidation Account that were deposited therein pursuant to the next Settlement Date preceding proviso, which amounts shall be applied by the repurchase price required Borrower in accordance with Section 11.1(h); and
(iii) if such day is an Amortization Day, transfer to be paid pursuant to this subsectionthe Liquidation Account the entire remainder of such Collections.
(c) Except as stated On each day that any Carrying Costs (other than Servicing Fees) are payable by the Borrower in subsection accordance with this Agreement, the Servicer shall transfer from the Liquidation Account to the Agent's Account, out of Collections deposited in the Liquidation Account in respect of such Carrying Costs pursuant to Section 11.1(b)(i), the amount of such Carrying Costs that are due and payable on such day.
(ad) On each day that the Borrower is required to repay the Loans in accordance with Section 3.1 or pay amounts to the Administrative Agent in connection with Letters of Credit pursuant to the proviso to Section 3.1(b) or (bc) or Section 2.8.4, the Servicer shall transfer from the Liquidation Account to the Agent's Account, out of this Collections deposited in the Liquidation Account pursuant to Section 2.04 11.1(b)(ii) and (b)(iii), the principal amount of the Loans required to be repaid and the payments to be made to the Agent pursuant to Section 3.1 (including pursuant to Section 3.1(b) or as otherwise required by law or (c) thereof) and Section 2.8.4.
(e) On each Amortization Day occurring after the underlying ContractLoans and all Carrying Costs payable to the Secured Parties have been paid in full, the Servicer shall transfer to the Agent's Account all Collections from an Obligor of any Transferred Receivable amounts in the Liquidation Account, which remaining amounts shall be applied held by the Agent for application in accordance with clauses fourth, fifth and sixth of Section 11.1(g)(ii).
(f) On each day that any Servicing Fees are payable by the Borrower in accordance with this Agreement, the Servicer shall deposit to its own account from Collections held on deposit in the Liquidation Account pursuant to Section 11.1(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee; provided, however, that if an Event of Default has occurred and is continuing and ProSource or any Affiliate thereof is the Servicer, the Servicer shall not withdraw any amounts from the Liquidation Account with respect to accrued Servicing Fees.
(g) Upon receipt of funds deposited in the Agent's Account pursuant to Sections 11.1(c), 11.1(d), 11.1(e) or 11.1
(h) the Administrative Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not an Amortization Day, first, to the Transferred Receivables Secured Parties in payment in full of such Obligor all accrued interest on the Loans, second, to the Secured Parties in payment of accrued and unpaid Letter of Credit Fees and Commitment Fees and to cover all other Carrying Costs payable to the order Secured Parties, and third, to the Secured Parties in payment of the age outstanding principal amount of the Loans; and
(ii) if such Receivablesdistribution occurs on an Amortization Day, starting with first, to the oldest such ReceivableSecured Parties in payment in full of all accrued interest on the Loans, unless such Obligor designates its second, to the Secured Parties in payment of accrued and unpaid Letter of Credit Fees, Commitment Fees, and all other Carrying Costs payable to the Secured Parties, third, to the Secured Parties in payment the outstanding principal amount of the Loans, fourth, after the outstanding principal amount of the Loans, accrued interest thereon and other Carrying Costs payable to the Secured Parties have been paid in full, remaining amounts, to the extent of the Letter of Credit Outstandings, shall be 100 109 deposited into the LOC Collateralization Account to collateralize Letter of Credit Outstandings, fifth, to the Secured Parties for application the payment of all other Obligations of the Borrower hereunder, and sixth, to specific Receivablesthe Servicer (if the Servicer is ProSource or any Affiliate thereof) all accrued and unpaid Servicing Fees and to the Borrower all remaining amounts.
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Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside on its books and hold for the benefit of (and, at the request of the Program Agent following the taking of any action permitted by the first sentence of Section 6.03(a), segregate for) the Investors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) on each such date which is a day following a Report Date on which a Daily Report was delivered showing that (x) outstanding Capital plus Total Reserves exceeded (y) the sum of the Maximum Percentage Factor multiplied by the Net Receivables Pool Balance (as of the related Report Date) plus the amount (if any) on deposit in the Cure Account as of the related Report Date, the Collection Agent shall remit to the Cure Account the remaining Collections in the Lock-Box Accounts and Collections received by the Collection Agent on such date, provided that the Collection Agent shall not be obligated to remit Collections to the Cure Account pursuant to this clause (ii) to the extent that after giving effect thereto the amount on deposit in the Cure Account would exceed the Cure Amount;
(iii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iv) if such day is a Liquidation Day for any one or more Receivable Interests, set aside on its books and hold for the benefit of (and, at the request of the Program Agent, segregate for) the Investors and/or the Banks that hold such Receivable Interests and for the Investor Agents (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held for the benefit of any Investors or Banks on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the next Settlement Date (Capital) the conditions set forth in Section 3.02 are satisfied or waived by the Agents, such previously set aside amounts shall, to the extent they represent a return of Capital and have not been deposited to the Investor Agent’s Accounts pursuant to Section 2.04(c), be reinvested in accordance with the preceding subsection (iii) on the day of such subsequent satisfaction or waiver of conditions; and
(v) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (iii) or the proviso to subsection (iv), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsections (i) and (ii) above. On any Business Day on which funds are on deposit in the Cure Account, the Collection Agent (i) shall, upon the occurrence and continuance of a Trigger Event or upon the written request of Investor Agents representing the Majority Banks, and may (if the funds in the Cure Account exceed $2,500,000), upon written notice to the Program Agent and each of the Investor Agents, remit such funds from the Cure Account to the Program Agent’s Account, and the Program Agent shall thereafter deposit each Investor Agent’s allocable portion thereof to the Investor Agent’s Accounts for the ratable payment of Capital and any other amounts owed by the Seller hereunder to the relevant Investors and Banks pursuant to Section 2.04(d), or (ii) may, following delivery of a Seller Report to the Program Agent and each of the Investor Agents, withdraw from the Cure Account and remit to the Seller all or a portion of the funds in the Cure Account; provided that (x) no Trigger Event shall have occurred and be continuing and (y) such Seller Report shall state that, as of the related Report Date after taking account of the proposed withdrawal, (A) the sum of the Maximum Percentage Factor multiplied by the Net Receivables Pool Balance and the remaining amount on deposit in the Cure Account will be equal to or greater than (B) outstanding Capital plus Total Reserves, and such Seller Report shall set forth the calculation supporting such statement.
(c) The Collection Agent shall deposit into the Program Agent’s Account, and the Program Agent shall thereafter, after taking into account any deductions that the Program Agent may make in accordance with clause “first” of Section 2.04(d)(ii), deposit in the applicable Investor Agent’s Account of each Investor Agent, (i) on the Settlement Date (Yield and Fees) for each Receivable Interest, Collections held for the Investors or the Banks in each Investor Agent’s Group with respect to Yield, Fees and other amounts (other than Capital) that relate to such Receivable Interest pursuant to Section 2.04(b); provided that, if such Settlement Date (Yield and Fees) is not a Liquidation Day or a Pool Non-compliance Date, the Collection Agent may withhold from each such deposit an amount equal to all accrued Collection Agent Fee payable by the Investors and Banks in each Group, and (ii) on the Settlement Date (Capital) for each Receivable Interest, all other Collections held for the Investors or the Banks in each Investor Agent’s Group that relate to such Receivable Interest pursuant to Section 2.04(b). On the Business Day immediately following the delivery of any Monthly Report or Weekly Report which sets forth a Pool Non-compliance Date as of the close of business on the last Business Day of the preceding calendar month or Week, as applicable, and on each Business Day thereafter until a Pool Non-compliance Date no longer exists, the Collection Agent shall deposit into the Program Agent’s Account, and the Program Agent shall thereafter deposit each Investor Agent’s allocable portion thereof to the Investor Agent’s Accounts, Collections set aside pursuant to subsection (iv) of Section 2.04(b); provided that the aggregate amount deposited pursuant to this sentence with respect to any Monthly Report or Weekly Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital, the Net Receivables Pool Balance is equal to the Required Net Receivables Pool Balance.
(d) Upon receipt of funds deposited into an Investor Agent’s Account, the relevant Investor Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees, second to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group, except to the extent such Collection Agent Fee has been withheld by the Collection Agent pursuant to Section 2.04(c) above, and third to such Investor Agent and/or the Investors and Banks in its Group in payment of any other amounts (other than Capital) owed by the Seller hereunder; provided, however, that the portion (if any) of such deposit withdrawn from the Cure Account pursuant to the last paragraph of Section 2.04(b) shall be first paid ratably to the Investors or Banks in such Group holding any portion of the relevant Receivable Interests in reduction of Capital.
(ii) if such distribution occurs on a Liquidation Day, first to the Program Agent (if such Investor Agent is CNAI) in payment of any amounts owed by the Seller to the Program Agent and/or CNAI pursuant to Section 11.04(a) in connection with out-of-pocket costs and expenses incurred by the Program Agent and to such Investor Agent in payment of any amounts owed by the Seller to such Investor Agent pursuant to Section 11.04(a) in connection with out-of pocket costs and expenses incurred by such Investor Agent (it being understood and agreed that the amounts payable under this clause “first” may, if the Program Agent so elects, be deducted by the Program Agent from the amounts deposited by the Program Agent into the applicable Investor Agent’s Account), second to the Collection Agent (if the Collection Agent is not IR Company or an Affiliate of IR Company) in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in such Investor Agent’s Group, third to the Investors or the Banks in such Investor Agent’s Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield, Fees and Liquidation Fee, fourth to such Investors and/or Banks in reduction to zero of all Capital, fifth to such Investors, Banks or such Investor Agent in payment of any other amounts owed by the Seller hereunder, and sixth to the Collection Agent (if the Collection Agent is IR Company or an Affiliate of IR Company); provided, however, that if such funds were deposited into such Investor Agent’s Account pursuant to the second sentence of Section 2.04(c) as the result of the occurrence of a Pool Non-compliance Date, such funds shall instead be distributed ratably to the Investors or the Banks in such Group that hold the relevant Receivable Interest in reduction of the Capital thereof. After the Capital, Yield, Fees and Collection Agent Fee with respect to all Receivable Interests, and any other amounts payable by the Seller to the Investors, the Banks, the Investor Agents or the Program Agent hereunder, have been paid in full and any contingent obligations of the Program Agent under any Lock-Box Agreement or the Cure Account Agreement have been released, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day any Transferred Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If ;
(ii) if on any day any of the Seller representations or warranties contained in Section 4.01(i) is not the Collection Agentno longer true with respect to any Pool Receivable, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Program Agent or any of the Investor Agents, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Program Agent or such Investor Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Within one Business Day after the end of each Fixed Period in respect of which Yield is computed by reference to the Investor Rate, each Investor Agent shall furnish the Program Agent with, and the Program Agent shall forward to the Seller, an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such Fixed Period with respect to the Receivable Interests held by the Investors and the Banks in such Investor Agent’s Group.
(g) For the avoidance of doubt, to the extent that cash is released to the Seller pursuant to and in accordance with Section 2.04(b) and is subsequently applied by the Seller to purchase Receivables under a Purchase Agreement, such cash shall, upon the completion of such purchase of Receivables, be automatically released from any security interest granted in such cash pursuant to Section 2.11.
Appears in 1 contract
Samples: Receivable Interest Purchase Agreement (Ingersoll Rand Co LTD)
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by the Collection Agent in accordance with the terms of this Agreement. The Seller shall provide to the Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day or Provisional Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust for such Purchaser, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to such Purchaser's Yield and Pro Rata Share of the Collection Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued through such day for such Receivable Interest and not previously set aside; provided, that notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers;
(ii) if such day is neither a Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, reinvest on behalf of such Purchaser the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections or, if the remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers; and
(vi) release to the Seller for its own account any Collections in excess of such amounts allocated pursuant to subsections (i) through (v) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, on each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, however, if Collections have been commingled with the Collection Agent's other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Collection Agent from and to the extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to pay in full all such amounts): first to the Collection Agent (if other than Georgia-Pacific or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser, fourth to such Purchaser in payment of any other amounts owed by the Seller to such Purchaser under this Agreement, fifth to the Administrative Agent in payment of amounts owed by the Seller to the Administrative Agent under this Agreement and sixth to the Collection Agent (if Georgia-Pacific or its designee). After the Capital and Yield with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount or other adjustment made by the Seller or an Originator, or any right of setoff is exercised by the Obligor thereunder, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties contained in whole Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable, (x) the Seller shall fail to perform or observe any term, covenant or agreement contained in partSection 5.01(d), or (y) the Seller or any Originator or the Collection Agent (if Georgia-Pacific or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a Diluted manner which materially and adversely affects the collectibility of such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(d), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) So long as no Level II Downgrade Event shall have occurred, the Collection Agent shall, on each Deposit Date, with respect to Collections deposited in any of the Lock-Box Accounts on such Deposit Date or received by the Collection Agent on such Deposit Date (in the following order and priority):
(i) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Program Agent following the occurrence and during the continuation of a Collection Agent Default, segregate) for the Investors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and/or the Banks that hold such Receivable Interests and for the Investor Agents (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the next succeeding Settlement Date the conditions set forth in Section 3.02 are satisfied or waived by the Program Agent and the Investor Agents, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) If a Level II Downgrade Event shall have occurred and be continuing, the Collection Agent shall comply with the following:
(I) On each Deposit Date during the Revolving Period, the Collection Agent shall, by no later than 3:00 P.M. (New York City time), deliver to the Program Agent and the Investor Agents the Daily Report for such date. If the Collection Agent shall fail to deliver the Daily Report on any Deposit Date during the Revolving Period, the Collection Agent shall not be permitted to withdraw any amounts from the Lock-Box Accounts on any date thereafter unless and until the Collection Agent shall be in compliance with this subsection (I) (but subject to the right of the Agent to prohibit withdrawals by the Collection Agent from the Lock-Box Accounts to the extent provided in Section 6.03).
(II) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that no Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests; provided that, if immediately following any such reinvestment such Deposit Date would be a Pool Non-compliance Date, the Collection Agent shall retain all such remaining Collections in (or, to the extent the Collection Agent has received any such Collections, redeposit such Collections into) the Lock-Box Accounts (and deposit the other such remaining Collections received by it into the Lock-Box Accounts) to be applied pursuant to Section 2.04(c)(III)(iii); and
(iv) remit the Seller Collections to the Seller.
(III) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that a Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) remit to the Cash Collateral Account from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date an amount equal to the lesser of (x) the sum of the remaining Collections in the Lock-Box Accounts (and Collections received by the Collection Agent from the Lock-Box Accounts on such Deposit Date) and the remaining Collections of Pool Receivables received by it on such Deposit Date and (y) an amount equal to the excess of the Required Net Receivables Pool Balance over the Net Receivables Pool Balance;
(iv) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests (for purposes of determining the remainder of Purchaser Collections, any Collections which have previously been applied pursuant to Section 2.04(c)(III)(iii) shall be deemed to be first Seller Collections and then Purchaser Collections); and
(v) remit the Seller Collections to the Seller.
(IV) On the first Business Day following each Deposit Date during the Liquidation Period, the Collection Agent shall, by no later than 3:00P.M. (New York City time), remit to each Investor Agent’s Account for each Investor Agent all Collections held for such Investor Agent, the Investors and/or the Banks in its Group in the Lock-Box Accounts and such Investor Agent’s pro-rata portion of all Collections of Pool Receivables which the Collection Agent received on such Deposit Date.
(d) The Collection Agent shall deposit into the Investor Agent’s Account for each Investor Agent (i) on each Settlement Date, Collections held for such Investor Agent, the Investors and/or the Banks in its Group during the prior calendar month pursuant to Sections 2.04(b)(i), 2.04(c)(II)(ii) and 2.04(c)(III)(ii), (excluding, however, so long as an Originator is the Collection Agent, the Collection Agent Fee) and (ii) on the Settlement Date for each Receivable Interest, Collections held for such Investor Agent, the Investors and/or the Banks in its Group that relate to such Receivable Interest pursuant to Section 2.04(b) or (c) (other than as set forth in clause (i)). After the occurrence and during the continuation of Level I Downgrade Event which is not a Level II Downgrade Event, on the Business Day immediately following the delivery of any Weekly Report which sets forth a Pool Non-Compliance Date as of the close of business on the last Business Day of the preceding Week, and on each Business Day thereafter until a Pool Non-Compliance Date no longer exists, the Collection Agent shall deposit into the Investor Agent’s Account for each Investor Agent Collections set aside for such Investor Agent, the Investors and/or Banks in its Group pursuant to clause (iii) of Section 2.04(b), provided that the aggregate amount deposited pursuant to this sentence with respect to any Weekly Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital, the sum of the Receivable Interests is equal to 100%. The Collection Agent shall pay to itself on each Settlement Date which is not a Liquidation Day Collections set aside with respect to each Receivable Interest on account of accrued Collection Agent Fee. On any Business Day on which funds are on deposit in the Cash Collateral Account, the Collection Agent (i) shall, upon written notice from the Program Agent or any of the Investor Agents, and may (if the funds in the Cash Collateral Account exceed $10,000,000), upon written notice to the Program Agent and the Investor Agents, remit such funds from the Cash Collateral Account to the Investor Agent’s Account for each Investor Agent, such remittance to be applied as a reduction of Capital, or (ii) may, following delivery of the Weekly Report or Daily Report to the Program Agent, as the case may be, withdraw from the Cash Collateral Account and remit to the Seller all or a portion of the funds in the Cash Collateral Account; provided that such Weekly Report or Daily Report, as the case may be, shall state that, after taking account of the proposed withdrawal, the Net Receivables Pool Balance on such day will be equal to or greater than the Required Net Receivables Pool Balance, and such Weekly Report or such Daily Report, as the case may be, shall set forth the calculation supporting such statement.
(e) Upon receipt of funds deposited into the Investor Agent’s Account, the relevant Investor Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group; provided, that if such distribution related to Collections remitted from the Cash Collateral Account, such distribution shall be paid to the Investors and the Banks in its Group that hold the Receivable Interest in respect thereof, in reduction of Capital.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees, second to such Investors and/or Banks in reduction to zero of all Capital, third to such Investors, Banks or such Investor Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks, the Investor Agents or the Program Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(f) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, rejected or returned merchandise or services, or any cash discount, discount for quick payment or other adjustment made by the Seller or the applicable Originator, or any setoff, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on reduction or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.adjustment;
(bii) Upon discovery by the Seller if on any day upon each purchase or the Purchaser of a breach of reinvestment (A) any of the representations and or warranties made by the Seller contained in Section 4.01(j4.01(h) is no longer true with respect to any Transferred ReceivablePool Receivable or (B) the Investors or the Banks, such party as the case may be, shall give prompt written notice thereof not acquire a valid and perfected first priority undivided percentage ownership interest to the other party, as soon as practicable extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security and Collections with respect to such Transferred Receivable. The proceeds of any such repurchase thereto, then the Seller shall be deemed to be have received on such day a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.Pool Receivable in full;
(ciii) Except except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(f), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Program Agent, any of the Investor Agents, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Program Agent, such Investor Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) In the event that the Program Agent or any Investor Agent receives Collections in respect of any Receivable directly from an Obligor, such Agent shall, at its option, either (i) promptly forward such Collections to the Collection Agent (and the Collection Agent shall apply such Collections in accordance with this Section 2.04) or (ii) promptly apply such Collections in accordance with this Section 2.04 in the same manner that Collection Agent would apply such Collections.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) So long as no Level II Downgrade Event shall have occurred, the Collection Agent shall, on each Deposit Date, with respect to Collections deposited in any of the Lock-Box Accounts on such Deposit Date or received by the Collection Agent on such Deposit Date (in the following order and priority):
(i) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Program Agent following the occurrence and during the continuation of a Collection Agent Default, segregate) for the Investors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and/or the Banks that hold such Receivable Interests and for the Investor Agents (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Program Agent and the Investor Agents, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) If a Level II Downgrade Event shall have occurred and be continuing, the Collection Agent shall comply with the following:
(I) On each Deposit Date during the Revolving Period, the Collection Agent shall, by no later than 3:00 P.M. (New York City time), deliver to the Program Agent and the Investor Agents the Daily Report for such date. If the Collection Agent shall fail to deliver the Daily Report on any Deposit Date during the Revolving Period, the Collection Agent shall not be permitted to withdraw any amounts from the Lock-Box Accounts on any date thereafter unless and until the Collection Agent shall be in compliance with this subsection (I) (but subject to the right of the Agent to prohibit withdrawals by the Collection Agent from the Lock-Box Accounts to the extent provided in Section 6.03).
(II) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that no Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests; provided that, if immediately following any such reinvestment such Deposit Date would be a Pool Non-compliance Date, the Collection Agent shall retain all such remaining Collections in (or, to the extent the Collection Agent has received any such Collections, redeposit such Collections into) the Lock-Box Accounts (and deposit the other such remaining Collections received by it into the Lock-Box Accounts) to be applied pursuant to Section 2.04(c)(III)(iii); and
(iv) remit the Seller Collections to the Seller.
(III) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that a Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) remit to the Cash Collateral Account from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date an amount equal to the lesser of (x) the sum of the remaining Collections in the Lock-Box Accounts (and Collections received by the Collection Agent from the Lock-Box Accounts on such Deposit Date) and the remaining Collections of Pool Receivables received by it on such Deposit Date and (y) an amount equal to the excess of the Required Net Receivables Pool Balance over the Net Receivables Pool Balance;
(iv) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests (for purposes of determining the remainder of Purchaser Collections, any Collections which have previously been applied pursuant to Section 2.04(c)(III)(iii) shall be deemed to be first Seller Collections and then Purchaser Collections); and
(v) remit the Seller Collections to the Seller.
(IV) On the first Business Day following each Deposit Date during the Liquidation Period, the Collection Agent shall, by no later than 3:00P.M. (New York City time), remit to each Investor Agent's Account for each Investor Agent all Collections held for such Investor Agent, the Investors and/or the Banks in its Group in the Lock-Box Accounts and such Investor Agent's pro-rata portion of all Collections of Pool Receivables which the Collection Agent received on such Deposit Date.
(d) The Collection Agent shall deposit into the Investor Agent's Account for each Investor Agent (i) on the fourth Business day of each calendar month, Collections held for such Investor Agent, the Investors and/or the Banks in its Group during the prior calendar month pursuant to Sections 2.04(b)(i), 2.04(c)(II)(ii) and 2.04(c)(III)(ii), (excluding, however, so long as the Originator is the Collection Agent, the Collection Agent Fee) and (ii) on the Settlement Date for each Receivable Interest, Collections held for such Investor Agent, the Investors and/or the Banks in its Group that relate to such Receivable Interest pursuant to Section 2.04(b) or (c) (other than as set forth in clause (i)). After the occurrence and during the continuation of Level I Downgrade Event which is not a Level II Downgrade Event, on the Business Day immediately following the delivery of any Weekly Report which sets forth a Pool Non-Compliance Date as of the close of business on the last Business Day of the preceding Week, and on each Business Day thereafter until a Pool Non-Compliance Date no longer exists, the Collection Agent shall deposit into the Investor Agent's Account for each Investor Agent Collections set aside for such Investor Agent, the Investors and/or Banks in its Group pursuant to clause (iii) of Section 2.04(b), provided that the aggregate amount deposited pursuant to this sentence with respect to any Weekly Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital, the sum of the Receivable Interests is equal to 100%. The Collection Agent shall pay to itself on each Settlement Date which is not a Liquidation Day Collections set aside with respect to each Receivable Interest on account of accrued Collection Agent Fee. On any Business Day on which funds are on deposit in the Cash Collateral Account, the Collection Agent (i) shall, upon written notice from the Program Agent or any of the Investor Agents, and may (if the funds in the Cash Collateral Account exceed $10,000,000), upon written notice to the Program Agent and the Investor Agents, remit such funds from the Cash Collateral Account to the Investor Agent's Account for each Investor Agent, such remittance to be applied as a reduction of Capital, or (ii) may, following delivery of the Weekly Report or Daily Report to the Program Agent, as the case may be, withdraw from the Cash Collateral Account and remit to the Seller all or a portion of the funds in the Cash Collateral Account; provided that such Weekly Report or Daily Report, as the case may be, shall state that, after taking account of the proposed withdrawal, the Net Receivables Pool Balance on such day will be equal to or greater than the Required Net Receivables Pool Balance, and such Weekly Report or such Daily Report, as the case may be, shall set forth the calculation supporting such statement.
(e) Upon receipt of funds deposited into the Investor Agent's Account, the relevant Investor Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group; provided, that if such distribution related to Collections remitted from the Cash Collateral Account, such distribution shall be paid to the Investors and the Banks in its Group that hold the Receivable Interest in respect thereof, in reduction of Capital.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees, second to such Investors and/or Banks in reduction to zero of all Capital, third to such Investors, Banks or such Investor Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks, the Investor Agents or the Program Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(f) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, rejected or returned merchandise or services, or any cash discount, discount for quick payment or other adjustment made by the Seller or the Originator, or any setoff, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on reduction or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.adjustment;
(bii) Upon discovery by the Seller if on any day upon each purchase or the Purchaser of a breach of reinvestment (A) any of the representations and or warranties made by the Seller contained in Section 4.01(j4.01(h) is no longer true with respect to any Transferred ReceivablePool Receivable or (B) the Investors or the Banks, such party as the case may be, shall give prompt written notice thereof not acquire a valid and perfected first priority undivided percentage ownership interest to the other party, as soon as practicable extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security and Collections with respect to such Transferred Receivable. The proceeds of any such repurchase thereto, then the Seller shall be deemed to be have received on such day a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.Pool Receivable in full;
(ciii) Except except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(f), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Program Agent, any of the Investor Agents, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Program Agent, such Investor Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) In the event that the Program Agent or any Investor Agent receives Collections in respect of any Receivable directly from an Obligor, such Agent shall, at its option, either (i) promptly forward such Collections to the Collection Agent (and the Collection Agent shall apply such Collections in accordance with this Section 2.04) or (ii) promptly apply such Collections in accordance with this Section 2.04 in the same manner that Collection Agent would apply such Collections.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Servicer, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside and hold in trust (but not physically segregate) for the Banks that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Servicer Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Banks on a pro rata basis the percentage of such Collections represented by such Receivable Interest (net of any amounts set aside pursuant to Section 2.04(b)(i));
(iii) if such day is a Liquidation Day for (x) any one or more (but not all) Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Banks, the percentage of such Collections represented by such Receivable Interests, or (y) all of the Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) all of the remaining Collections received by the Servicer on such date (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date for the applicable Receivable Interest, and thereafter prior to the next occurring Settlement Date (Capital) the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) [Intentionally Omitted].
(d) The Servicer shall deposit into the Agent’s Account, (i) on the Settlement Date (Yield and Fees) for each Receivable Interest, Collections held for the Banks with respect to Yield, Fees and other amounts (other than Capital) that relate to such Receivable Interest pursuant to Section 2.04(b), (ii) on each Settlement Date (Capital) following delivery of a Seller Report which shows that the Aggregate Capital exceeded the Collateral Availability (as of the related Reporting Date), all other Collections held for the Banks pursuant to clause (iii) of Section 2.04(b); provided, however, that the aggregate amount deposited in the Agent’s Account pursuant to this clause (ii) with respect to any Seller Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the Aggregate Capital is equal to the largest multiple of $1,000,000 that does not exceed the Collateral Availability and (iii) on each Settlement Date (Capital) on which Collections are held for the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the preceding clause (ii) of this Section 2.04(d), all such remaining Collections..
(e) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Banks and to the Agent in ratable payment in full of all accrued Yield and Fees and then to the Servicer in payment in full of all accrued Servicer Fee; and
(ii) if such distribution occurs on a Liquidation Day, first to the Banks and to the Agent in ratable payment in full of all accrued Yield and Fees, second to the Banks ratably in reduction to zero of all Capital, third to the Banks or the Agent in payment of any other amounts owed by the Seller hereunder or under any other Transaction Document, and fourth to the Servicer in payment in full of all accrued Servicer Fee. After the payment in full of Capital, Yield, Fees and the Servicer Fee with respect to all Receivable Interests, and any other amounts payable by the Seller to the Banks or the Agent or the Servicer hereunder or under any other Transaction Document, including, without limitation, any reimbursement obligations of the Seller with respect to any indemnity provided by the Agent under any Deposit Account Agreement (such aggregate amount, the “Termination Amount”), all additional Collections with respect to the Receivable Interests shall be paid to the Seller for its own account.
(f) For the purposes of this Section 2.04:
(i) if on any day any Transferred Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If ;
(ii) if on any day any of the Seller representations or warranties contained in Section 4.01(h) is not the Collection Agentno longer true with respect to any Pool Receivable, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(f), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables;
(iv) if and to the extent the Agent or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) On the Facility Termination Date, the Seller shall pay to the Agent for its account and the account of the Banks and the Servicer the Termination Amount.
(h) All amounts payable by the Seller or the Servicer under this Agreement to the Agent for its own account or for the account of the Banks shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Banks under this Agreement shall be payable in Dollars.
(i) All payments in respect of Yield and Capital (x) shall be apportioned among all Receivable Interests to which such payments relate and (y) shall be made to each Bank on a pro rata basis in accordance with such Bank’s Percentage.
Appears in 1 contract
Samples: Receivables Purchase Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor's bankruptcy), the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (North Atlantic Energy Corp /Nh)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount, discount for quick payment or other adjustment made by the relevant Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against such Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but EXCLUDING adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor's bankruptcy), the such Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the either Seller or the Purchaser of a breach of any of the representations and warranties made by the a Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount, discount for quick payment or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor’s bankruptcy), the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying related Contract, all Collections received from an Obligor of any Transferred Originator Receivable shall be applied to the Transferred Originator Receivables then outstanding of such Obligor in the order of the age of such Originator Receivables, starting with the oldest such Originator Receivable, unless except if payment is designated by such Obligor designates its payment for application to against specific Originator Receivables.
(b) With respect to any Originator Receivables of an Obligor arising from and after the Termination Date which were not sold to the Buyer hereunder but which were billed on the same invoice as Originator Receivables of such Obligor sold by such Originator to the Buyer hereunder (such Originator Receivables, “Post-Termination Date Receivables”), such Originator shall identify to the Collection Agent, and the Collection Agent shall allocate, Collections with respect to such Obligor on the following basis:
(i) for any Obligor with an advanced metering system allowing electricity consumption to be recorded by the Originator every fifteen minutes, the portion thereof relating to electricity consumed by such Obligor prior to the Termination Date shall be treated as Originator Receivables and the portion thereof relating to electricity consumed by such Obligor on or after the Termination Date shall be treated as Post-Termination Date Receivables; and
(ii) for any Obligor with any other type of metering system, using the algorithm published by the Electric Reliability Council of Texas that such Originator uses to assign electricity consumption by an Obligor to particular days during a period based on customer-specific variables and actual weather variables, the portion thereof relating to electricity consumption by such Obligor assigned by such Originator to days prior to the Termination Date shall be treated as Originator Receivables and the portion thereof relating to electricity consumption by such Obligor assigned by such Originator to the Termination Date and days thereafter shall be treated as Post-Termination Date Receivables. Except as otherwise required by law or the related Contract, all payments received from any such Obligor with respect to such Receivables shall be allocated first to the Originator Receivables and then to the Post-Termination Date Receivables, except if payment is designated by such Obligor for application against specific Originator Receivables or Post-Termination Date Receivables, as applicable.
Appears in 1 contract
Samples: Trade Receivables Sale Agreement (Energy Future Competitive Holdings CO)
Settlement Procedures. (a) If on any day any a Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three five Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Electronic Data Systems Corp /De/)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article IV of this Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections into Collection Accounts. Subsequently, the Collection Agent shall forthwith cause all such Collections received in the Collection Accounts to be transferred into the Controlled Account within one Business Day; provided that, if the balance in any such Collection Account is less than $50,000, the Collection Agent shall not be obligated to transfer any amounts from such Collection Account as long as the account balance remains less than $50,000 and also as long as the balance is transferred according to a standing order (a “Threshold Basis”). Additionally, with respect to Collection Accounts that have balances less than $50,000 and whose balances are not transferred on a Threshold Basis, the Collection Agent will transfer funds manually from such accounts on a weekly basis. Any Amounts transferred pursuant to this Section 1.04(a) may be in an amount that leaves up to $10,000 remaining in each such Collection Account. The Seller shall provide to the Collection Agent (if other than United Rentals) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest in the Pool Receivables.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received or deemed received by it pursuant to this Agreement with respect to any Receivable Interest in the Pool Receivables:
(i) set aside and hold in trust (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited) for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables and for the Administrative Agent, out of the percentage of such Collections attributable to such Receivable Interest in the Pool Receivables, an amount equal to the Yield, all fees and payments due pursuant to each of the Fee Agreements, and the Collection Agent Fee accrued through such day for such Receivable Interest in the Pool Receivables and not previously set aside;
(ii) if such day is not a Liquidation Day, reinvest with the Seller, on behalf of the Investors or the Banks that hold such Receivable Interest in the Pool Receivables, the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest in the Pool Receivables pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust the entire remainder of such percentage of Collections for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited); provided, however, that if the Liquidation Day resulted solely by reason of the non-satisfaction of the initial purchase conditions (as set forth in paragraph 1 of Exhibit II) and such conditions are subsequently satisfied or are waived by the Purchaser Agents and written notice is provided to the Rating Agencies rating the Commercial Paper, any amounts that have been set aside and held in trust pursuant to this clause (iii) shall be reinvested in accordance with the preceding clause (ii); provided that the Event of Termination identified as paragraph (g) of Exhibit V cannot be waived by the Purchaser Agents; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing clause (ii) or the first proviso to clause (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to clause (i) above.
(c) On (x) the Settlement Day for a Receivable Interest in the Pool Receivables the Collection Agent shall deposit, as applicable, (i) with the Administrative Agent for its own account, Collections held for the Administrative Agent that relate to any fees owed to the Administrative Agent pursuant to the Scotia Capital Fee Agreement and any other accrued and unpaid amounts owed to the Administrative Agent by the Seller hereunder pursuant to Section 1.04(b)(i), (ii) into each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i), and (iii) with the Administrative Agent for transfer to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii); provided, that, in the event any Bank is a Delaying Bank at the time of transfer of such Collections by the Administrative Agent to each Purchaser Agent’s Account pursuant to this clause (iii), then such amounts shall be transferred by the Administrative Agent, first to the Purchaser Agent’s Account of each Purchaser Agent whose related Banks are each Non-Delaying Banks ratably according to the amount then owed to each Investor or Bank related to each such Purchaser Agent, until the aggregate outstanding Capital of Receivable Interests in the Pool Receivables held by each Bank plus, in the event such Bank has any related Purchasers, such Bank’s ratable share of the outstanding Capital of Receivable Interests in the Pool Receivables held by such related Purchasers is equal to such Bank’s ratable share (based on the applicable Bank’s Percentage) of the aggregate outstanding Capital of Receivable Interests in the Pool Receivables, and second to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank and (y) any Liquidation Day that occurs at such time that there is a Delaying Bank, upon the request of the Purchaser Agents whose related Banks are each Non-Delaying Banks, the Collection Agent shall deposit with the Administrative Agent for transfer to the Purchaser Agent’s Account of each such Purchaser Agent ratably according to the amount then owed to each Investor or Bank related to each such Purchaser Agent, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii) in an amount required for application in full under item “first” contained in the proviso at the end of Section 1.04(c)(x)(iii).
(d) Upon receipt of funds deposited into its Purchaser Agent’s Account, the related Purchaser Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield, all fees and payments due pursuant to each of the Fee Agreements, and second to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees if the Collection Agent is not United Rentals or an Affiliate of United Rentals, second to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield and all fees and payments due pursuant to each of the Fee Agreements, third to such Investors or Banks, pro rata, in reduction to zero of all Capital, fourth to such Investors or Banks or the Administrative Agent or the Purchaser Agents or any Indemnified Party or Affected Person, pro rata, in payment of any other accrued and unpaid amounts owed by the Seller hereunder, and fifth to the Collection Agent, if United Rentals or an Affiliate of United Rentals is the Collection Agent, in payment in full of all accrued and unpaid Collection Agent Fees. After the Capital and Yield and accrued and unpaid Collection Agent Fees with respect to a Receivable Interest in the Pool Receivables, and any other amounts payable by the Seller to the Investors, the Banks, the Administrative Agent or the Purchaser Agents hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest in the Pool Receivables and any excess cash Collateral shall be paid to the Seller for its own account.
(e) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any Dilution, or any setoff or dispute between the Originator and an Obligor due to a claim arising out of the same or any other transaction, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable Responsible Officer of the Company becomes aware that the representation and warranty in paragraph (in whole or in parth) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in full; and
(iii) if and to the amount of such Diluted Receivable. If extent the Seller is not the Collection Administrative Agent, the Seller Purchaser Agents, any Investors or any Bank or any Indemnified Party or Affected Person shall be required for any reason to pay over to an Obligor (or to any trustee, receiver, custodian or similar official in any proceeding of the Collection Agent on or prior to the next Settlement Date all amounts type contemplated by paragraph (g) of Exhibit V) any amount received by it hereunder, such amount shall be deemed not to have been so received pursuant but rather to this subsectionhave been retained by the Seller, and, accordingly, the Administrative Agent, the Purchaser Agents, the Investors or the Banks, or the Indemnified Parties or the Affected Persons, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(cf) Except as stated provided in subsection (aSection 1.04(e)(i) or (b) of this Section 2.04 ii), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
(g) The Seller shall forthwith deliver (i) to the Collection Agent an amount equal to all Collections deemed received by the Seller pursuant to Section 1.04(e)(i) or (ii) above and the Collection Agent shall hold or reinvest such Collections in accordance with Section 1.04(b), or (ii) if Collections are then being paid to the Administrative Agent or the Controlled Account directly or indirectly owned or controlled by the Administrative Agent, the Seller shall forthwith cause such deemed Collections to be paid to the Administrative Agent or such Controlled Account. So long as the Seller shall hold any Collections or deemed Collections required to be paid to the Collection Agent, the Administrative Agent, a Purchaser Agent, a Purchaser, a Bank, an Indemnified Party, or an Affected Person, it shall hold such Collections in trust (and, at the request of the Administrative Agent or any Purchaser Agent, separate and apart from its own funds and shall clearly xxxx its records to reflect such trust).
(h) With respect to each Bank that is a Nonrenewing Bank that has not been replaced by another Bank pursuant to Section 1.13 (any such Bank, a “Non-Extending Bank”), the Collection Agent shall implement the procedures set forth in this Section 1.04(h) (a “Partial Liquidation”). On each Business Day prior to such Non-Extending Bank’s Bank Commitment being reduced to zero (provided that no Event of Termination has occurred and is continuing), the Collection Agent shall apply funds out of the Collections represented by the Receivable Interest received and not previously applied in the following manner:
(i) set aside and hold in trust in the Collection Account, for the benefit of the Non-Extending Banks and their related Purchasers, if any, an amount equal to all Yield and fee(s) and other payments owed under the Fee Agreements (based on the Receivable Interest at such time), in each case accrued through such day and not so previously set aside or paid. The Collection Agent shall thereafter pay to each applicable Purchaser Agent (ratably according to accrued Yield and fees and other payments owed under the Fee Agreements) on the last day of each Settlement Period for the Non-Extending Banks the amount of such accrued and unpaid fees and other payments owed under the Fee Agreements and Yield;
(ii) pay to each applicable Purchaser Agent for the account of each Non-Extending Bank, if any, related to such Purchaser Agent (ratably based on the Bank Commitment of the Non-Extending Bank at such time), and, in the event such Non-Extending Bank has any related Purchasers, for the account of such related Purchasers solely to the extent necessary to reduce any such Purchaser’s pro rata portion of the Purchase Limit to an amount that is equal to or lesser than the amount of any available Bank Commitment of any remaining Banks related to any such Purchaser at such time, from such Collections remaining after application pursuant to clause (i) above, the amount of such Bank Commitment of the Non-Extending Bank; provided that, solely for purposes of determining such Non-Extending Bank’s ratable share of such Collections, such Bank Commitment shall be deemed to remain constant from the date such Bank becomes a Non-Extending Bank until the date such Bank Commitment of the Non-Extending Bank has been paid in full; it being understood that if such day is also a Termination Date or a day on which an Event of Termination has occurred, the Bank Commitment of the Non-Extending Bank shall be recalculated at such time (taking into account amounts received by or on behalf of such Bank in respect of its Capital pursuant to this clause (ii)), and thereafter Collections shall be set aside for payment to all Investors (ratably according to the Bank Commitment of such Non-Extending Bank) pursuant to paragraph (d) above; and
(iii) reinvest the balance of such Collections in respect of Capital to the acquisition of additional undivided percentage interests pursuant to Section 1.02 hereof.
(i) Within one Business Day after the end of each Fixed Period, each Purchaser Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and fees for such Fixed Period with respect to the Receivable Interests held by such Purchaser Agent’s related Investors.
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Settlement Procedures. (a) If The Servicer shall hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent during the continuance of an Event of Termination or a Non-Reinvestment Event, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Seller or received in any day any Transferred Receivable becomes (Blocked Account, Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in whole or in part) a Diluted ReceivableSection 6.03 are satisfied on such date, the Servicer may release to the Seller shall be deemed from such Collections the amount (if any) necessary to have received pay (i) the purchase price for Receivables purchased by the Seller on such day date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Seller to the Originators under the Subordinated Notes (each such release, a Collection “Release”), which Release constitutes payment of the Deferred Purchase Price with respect to such Transferred Receivable Receivables. On each Settlement Date, the Servicer (or, following its money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the amount of such Diluted Receivable. If the Seller is not the Collection AgentUCC) and (vii) all proceeds of, and all amounts received or receivable under any or all of, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectionforegoing.
(b) Upon discovery by The Administrative Agent (for the Seller or the Purchaser of a breach of any benefit of the representations and warranties made by the Seller in Section 4.01(jSecured Parties) shall have, with respect to any Transferred Receivableall the Support Assets, such party shall give prompt written notice thereof and in addition to all the other rights and remedies available to the other partyAdministrative Agent (for the benefit of the Secured Parties), as soon as practicable all the rights and in remedies of a secured party under any event within three Business Days following such discoveryapplicable UCC. The Seller shall, upon not less than two Business Days’ notice from hereby authorizes the Purchaser or its assignee or designee, repurchase such Transferred Receivable on Administrative Agent to file financing statements describing the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except collateral covered thereby as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, “all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of debtor’s personal property or assets” or words to that effect, notwithstanding that such Receivables, starting with wording may be broader in scope than the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivablescollateral described in this Agreement.
Appears in 1 contract
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by the Collection Agent in accordance with the terms of this Agreement. The Seller shall provide to the Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day or Provisional Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust for such Purchaser, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to such Purchaser’s Yield and Pro Rata Share of the Collection Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued through such day for such Receivable Interest and not previously set aside; provided, that notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent’s other funds prior to their payment to the Purchasers;
(ii) if such day is neither a Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, reinvest on behalf of such Purchaser (such reinvestment to be deemed a Purchase of a Receivable Interest by such Purchaser) the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections or, if the remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent’s other funds prior to their payment to the Purchasers; provided, further, that if a Downgrade Event has occurred and is continuing, such notice may be given by the Administrative Agent in its sole discretion or at the direction of any Purchaser;
(v) if such day is a Mandatory Reduction Day, to the extent not set aside and held in the Agent’s Account pursuant to Section 2.04(e), set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent’s other funds prior to their payment to the Purchasers; provided, further, that if a Downgrade Event has occurred and is continuing, such notice may be given by the Administrative Agent in its sole discretion or at the direction of any Purchaser; and
(vi) release to the Seller for its own account any Collections in excess of such amounts allocated pursuant to subsections (i) through (v) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, on each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, however, if Collections have been commingled with the Collection Agent’s other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Collection Agent from and to the extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser’s Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to pay in full all such amounts): first to the Collection Agent (if other than Georgia-Pacific or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser, fourth to such Purchaser in payment of any other amounts owed by the Seller to such Purchaser under this Agreement, fifth to the Administrative Agent in payment of amounts owed by the Seller to the Administrative Agent under this Agreement and sixth to the Collection Agent (if Georgia-Pacific or its designee). After the Capital and Yield with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods, merchandise or services, or any cash discount or other adjustment made by the Seller or an Originator, or any right of setoff is exercised by the Obligor thereunder, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties contained in whole Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable, (x) the Seller shall fail to perform or observe any term, covenant or agreement contained in partSection 5.01(d), or (y) the Seller or any Originator or the Collection Agent (if Georgia-Pacific or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a Diluted manner which materially and adversely affects the collectibility of such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(d), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(e) If the Collection Agent shall be required to segregate and deposit Collections to the Agent’s Account in accordance with Section 6.02(b):
(i) so long as no Event of Termination, Liquidation Day or Mandatory Reduction Day has occurred and is continuing, the Collection Agent shall be permitted to withdraw amounts from the Agent’s Account and, on each day, apply all Collections so withdrawn from the Agent’s Account in accordance with Section 2.04(b);
(ii) if an Event of Termination or a Liquidation Day has occurred and is continuing, the Collection Agent shall not be permitted to withdraw any amounts from the Agent’s Account unless and until such Event of Termination or Liquidation Day is no longer continuing, and amounts on deposit in the Agent’s Account shall be allocated and paid to each Purchaser (based on its Pro Rata Share), and applied by such Purchaser, on each day in accordance with Section 2.04(c); and
(iii) if a Mandatory Reduction Day has occurred and is continuing (and no Event of Termination or Liquidation Day has occurred and is continuing), all Collections on deposit in the Agent’s Account in excess of the Mandatory Reduction Amount of all of the Purchasers shall be applied as provided in Section 2.04(b) and, on Friday of each week, if such day is a Mandatory Reduction Day, the Collection Agent shall (and if the Collection Agent does not do so, the Administrative Agent shall, at the direction of any Purchaser) immediately cause to be to remitted to each Purchaser such Purchaser’s Mandatory Reduction Amount from Collections on deposit in the Agent’s Account. Amounts on deposit in the Agent’s Account shall remain uninvested at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) If Except with respect to Loans made pursuant to Section 2.3(f), each Lender shall make each Loan to be made by it hereunder on any day any Transferred Receivable becomes the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 2:00 p.m., New York City time, and the Administrative Agent shall promptly credit the amounts so received to an account designated by the applicable Borrower (or Borrower Agent on behalf of such Borrower) in whole or in part) the applicable request for a Diluted ReceivableLoan or, the Seller if a Loan shall not be deemed to have received made on such day a Collection of such Transferred Receivable in date because any condition precedent herein specified shall not have been met, return the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay amounts so received to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectionrespective Lenders.
(b) Upon discovery by Unless the Seller or Administrative Agent shall have received notice from a Lender prior to the Purchaser of a breach date of any Loan that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share of such Loan, the Administrative Agent may assume that such Lender has made such Pro Rata Share available to the Administrative Agent on the date of such Loan in accordance with paragraph (a) above and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have made such Pro Rata Share available to the Administrative Agent, such Lender and the Borrowers jointly and severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the applicable Borrower to but excluding the date such amount is repaid to the Administrative Agent at (i) in the case of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivableapplicable Borrower, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price rate per annum equal to the Outstanding Balance interest rate applicable at the time to such Loans and (ii) in the case of such Transferred ReceivableLender, a rate determined by the Administrative Agent to represent its cost of overnight or short-term funds (which determination shall be conclusive absent manifest error). Each repurchase If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Pro Rata Share of a Transferred Receivable shall include such Loan for purposes of this Agreement
(c) Nothing in this Section or elsewhere in this Agreement or the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase other Financing Agreements shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay require Administrative Agent to the Collection Agent advance funds on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor behalf of any Transferred Receivable shall be applied Lender or to the Transferred Receivables relieve any Lender from its obligation to fulfill its Commitment hereunder or tot prejudice any rights that any Borrower may have against any Lender as a result of such Obligor any default by any Lender hereunder in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates fulfilling its payment for application to specific ReceivablesCommitment.
Appears in 1 contract
Samples: Loan and Security Agreement (CPG International Inc.)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount or other similar adjustment made by a Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against a Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole respect of such Obligor's bankruptcy, insolvency or in part) a Diluted Receivablesimilar event), the such Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on reduction or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectionadjustment.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j) with respect to any Transferred ReceivableReceivable transferred by such Seller, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The If such breach cannot be cured, such Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance outstanding balance of such Transferred ReceivableReceivable (which shall be calculated excluding the amount of the related GST). Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Such Seller shall pay to the Collection Agent Purchaser on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection subsections (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Purchased Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Receivables Transfer and Administration Agreement (Coltec Industries Inc)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, transfer such Collections from the Lock-Box Accounts and deposit such Collections into the Collection Account. With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) set aside for the benefit of the Purchaser, out of the percentage of such Collections represented by the Participation, FIRST an amount equal to the Discount accrued through such day for each Portion of Investment and not previously set aside and SECOND, to the extent funds are available therefor, an amount equal to the Servicing Fee and the Commitment Fee accrued through such day for the Participation and not previously set aside; and
(ii) subject to SECTION 1.4(F), if such day is not a Termination Day, remit to the Seller, on behalf of the Purchaser, the remainder of the percentage of such Collections, represented by the Participation, to the extent representing a return on the Investment; such Collections shall automatically remain invested in the Participation; IT BEING UNDERSTOOD, that prior to so remitting to the Seller the remainder of such Collections, the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% on such day, such Collections shall not be remitted to the Seller but shall remain in the Collection Account for the benefit of the Purchaser in accordance with PARAGRAPH (iii) below;
(iii) if such day is a Termination Day, maintain in the Collection Account for the Purchaser the entire remainder of the percentage of the Collections represented by the Participation; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are maintained in the Collection Account on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Agent, such previously set aside amounts shall, to the extent representing a return on the Investment, remain invested in accordance with the preceding PARAGRAPH (ii) on the day of such subsequent satisfaction or waiver of conditions; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are maintained in the Collection Account on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Agent, such previously set aside amounts shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to remain invested in accordance with the foregoing PARAGRAPH (ii) or the proviso to PARAGRAPH (iii), release to the Seller (subject to SECTION 1.4(f)) for its own account any Collections in excess of the sum of (x) such amounts, (y) the amounts that are required to be maintained in the Collection Account pursuant to PARAGRAPH (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such other account designated by the Agent), on the last day of each Yield Period relating to a Portion of Investment:
(i) Collections held on deposit in the Collection Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(i) in respect of accrued Discount and the Program Fees and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Collection Account for the benefit of the Purchaser pursuant to SECTION 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Collection Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(iii) and (y) such Portion of Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Collection Account pursuant to SECTION 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant to SECTION 1.4(c) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, FIRST to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, SECOND, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and THIRD, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to SECTION 1.4(b)(i), to the Servicer (payable in arrears on the last day of each calendar month) in payment in full of accrued Servicing Fees so set aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day, FIRST to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, SECOND to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in payment in full of such Portion of Investment, FOURTH, if Seller or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Investment, and FIFTH, if the Investment and accrued Discount with respect to each Portion of Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate or other adjustment made by the Seller, any Originator or Servicer, or any setoff or dispute between the Seller, any Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in PARAGRAPHS (in whole f) or in part(l) a Diluted of Section 1 of EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
PARAGRAPH (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 SECTION 1.4(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the entire Investment or any Portion of Investment, the Seller may do so as follows:
(i) the Seller shall give the Agent at least fifteen (or in the case of any reduction of a Portion of Investment which is not a reduction of the entire Investment, two) Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to the Investment or such Portion of Investment (including to any related Discount) not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Collection Account for the benefit of the Purchaser, for payment to the Agent on the last day of the current Yield Period relating to the Investment or such Portion of Investment (and in the case of a reduction of the entire Investment, the Servicer shall hold in the Collection Account for payment on such date an amount equal to all other obligations of the Seller or Servicer to 6 the Purchaser, the Agent and each other Indemnified Party or Affected Person hereunder), and the Investment or the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; PROVIDED that,
A. the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Investment of the Participation after giving effect to such reduction shall be not less than $1,000,000 unless the entire Investment shall have been reduced to zero,
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to SECTION 1.4(f)(i), to the Portion of Investment with the shortest remaining Yield Period.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Atrium Companies Inc)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying relevant Contract, or as otherwise specified by such Obligor, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Receivables Sale Agreement (Northern Indiana Public Service Co)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount, discount for quick payment or other adjustment made by the relevant Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against such Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor’s bankruptcy), the such Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction or adjustment. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the any Seller or the Purchaser of a breach of any of the representations and warranties made by the a Seller in Section 4.01(j) with respect to any Transferred Purchased Receivable, such party shall give prompt written notice thereof to the other partyPurchaser or the relevant Seller as applicable, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Purchased Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Purchased Receivable. Each repurchase of a Transferred Purchased Receivable shall include the Related Security with respect to such Transferred Purchased Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Purchased Receivable. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Purchased Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase Agreement (Ferro Corp)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which originated such Receivable shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the such Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon As soon as practicable and in no case more than three (3) days after discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the any Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyPurchaser, as soon as practicable the Servicer and in any event within three Business Days following such discoverythe applicable Seller. The applicable Seller shall, upon not less than two Business Days’ notice from the Servicer or the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the applicable Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables).
Appears in 1 contract
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside on its books and hold in trust (and, at the request of the Agent on any Liquidation Day with respect to such Receivable Interest (but not prior to such request), segregate into an account acceptable to the Agent) for the Investors or the Banks that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside on its books and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interests (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess of both such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) The Collection Agent shall deposit into the Agent's Account, on the Settlement Date for each Receivable Interest, Collections held for the Investors or the Banks that relate to such Receivable Interest pursuant to Section 2.04(b).
(d) Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees, second to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks or the Agent hereunder, have been paid in full and any contingent obligations of the Agent under any Account Agreement, Lock-Box Agreement or Bank Direction Agreement have been released, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day any Transferred Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If ;
(ii) if on any day any of the Seller representations or warranties contained in Section 4.01(h) is not the Collection Agentno longer true with respect to any Pool Receivable, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Dal Tile International Inc)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes (is reduced or cancelled as a result of Dilution, in whole or in part) a Diluted Receivableany such case, the applicable Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or cancellation. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectionSection 2.04(a). The Collection Agent shall be required to deposit any such amount in the Collection Account (if any) or Concentration Account no later than the Settlement Date for the applicable Settlement Period.
(b) Upon discovery by the Seller Sellers or the Purchaser of a breach of any of the representations and warranties made by the Seller Sellers in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyparties, as soon as practicable and in any event within three (3) Business Days following such discovery. The applicable Seller shall, upon not less than two (2) Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to to, and in accordance with, this subsectionSection 2.04(b).
(c) Except as stated in subsection (aSections 2.04(a) or (b2.04(b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Herc Holdings Inc)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it:
(i) pay to the Originator and/or EDS, as the case may be, any such Collections which are identified as amounts referred to in the second sentence of the definition of “Outstanding Balance”;
(ii) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(iii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent such Collections represent a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03, and pay to the Seller the amount so reinvested;
(iv) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interests (A) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests as to which such day is a Liquidation Day, and (B) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but in the case of the circumstances in both clause (A) and clause (B) above, not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date as to such Receivable Interests, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(v) during such times as amounts are required to be reinvested in accordance with the foregoing subSection (iii) or the proviso to subSection (iv), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subSection (ii) above.
(c) The Collection Agent shall deposit into the Agent’s Account, on the Settlement Date for each Receivable Interest, Collections held on that Settlement Date for the Investors or the Banks that relate to such Receivable Interest pursuant to Section 2.04(b).
(d) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interests ratably in payment in full of all accrued Yield and the Agent in payment in full of the accrued Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interests ratably in payment in full of all accrued Yield and the Agent in payment in full of the accrued Fees, second to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks or the Agent hereunder, have been paid in full and any contingent obligations of the Agent under any Lock-Box Agreement have been released, all additional Collections allocable to such Receivable Interest shall be paid by the Collection Agent and the Agent, to the extent each of them holds additional Collections, to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day any Transferred a Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If ;
(ii) if on any day any of the Seller representations or warranties contained in Section 4.01(h) is not the Collection Agentno longer true with respect to any Pool Receivable, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
subSection (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 2.04(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Within three Business Days after the end of each Fixed Period in respect of which Yield is computed by reference to the Investor Rate, the Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such Fixed Period with respect to the Receivable Interests held by the Investors and the Banks.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Electronic Data Systems Corp /De/)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) pursuant to this Agreement by the Seller or Servicer, transfer such Collections in available funds from the Lock- Box Accounts and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation Account, set aside for the benefit of the Purchaser, out of the percentage of such Collections represented by the Participation, FIRST an amount equal to the Discount accrued through such day for each Portion of Investment and not previously set aside and SECOND, to the extent funds are available therefor, an amount equal to the Servicing Fee (if the Originator or any Affiliate thereof is not the Servicer), the Commitment Fee and the Program Fee accrued through such day for the Participation and not previously set aside; and
(ii) subject to SECTION 1.4(F), if such day is not a Termination Day, remit to the Seller, on behalf of the Purchaser, the remainder of the percentage of such Collections, represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Participation shall be automatically recomputed pursuant to SECTION 1.3; IT BEING UNDERSTOOD, that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not be remitted to the Seller but shall be transferred to the Liquidation Account for the benefit of the Purchaser in accordance with PARAGRAPH (iii) below;
(iii) if such day is a Termination Day, transfer to the Liquidation Account for the Purchaser the entire remainder of the percentage of the Collections represented by the Participation; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Agent, such previously set aside amounts shall, to the extent representing a return on the Investment, be reinvested in accordance with the preceding PARAGRAPH (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing PARAGRAPH (ii) or the proviso to PARAGRAPH (iii), release to the Seller (subject to SECTION 1.4(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be transferred to the Liquidation Account pursuant to PARAGRAPH (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(i) The Servicer shall deposit into the Purchaser's Account (or such other account designated by the Agent), on each Servicer Report Date:
(A) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(i) in respect of accrued Discount and the Program Fees and Commitment Fees with respect to such Portion of Investment;
(B) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to SECTION 1.4(f) with respect to such Portion of Investment; and
(C) the lesser of (x) the amount of Collections then held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(iii) and (y) such Portion of Investment.
(ii) The Servicer shall deposit to its own account from Collections held on deposit in the Liquidation Account pursuant to SECTION 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee on each Servicer Report Date.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant to SECTION 1.4(c)(i) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, FIRST to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, SECOND, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and THIRD, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to SECTION 1.4(b)(i), to the Servicer (payable in arrears on the last day of each calendar month) in payment in full of accrued Servicing Fees so set aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day, FIRST to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, SECOND to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in payment in full of such Portion of Investment, FOURTH, if Vanstar or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Investment, and FIFTH, if the Investment and accrued Discount with respect to each Portion of Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller or an Affiliate of the Seller) have been paid in full, to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and then to the Servicer (if the Servicer is the Seller or an Affiliate of the Seller) in payment in full of all accrued Servicing Fees. After the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate or other adjustment (other than any adjustment relating to Ineligible Amounts) made by the Originator, Seller or Servicer, or any setoff or dispute between the Seller, Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in PARAGRAPHS (in whole g) or in part(m) a Diluted of SECTION A of EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
PARAGRAPH (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 SECTION 1.4(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing or otherwise specifies its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Investment of the Participation), the Seller may do so as follows:
(i) the Seller shall give the Agent at least two Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Investment not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Liquidation Account for the benefit of the Purchaser, for payment to the Agent on the last day of the current Settlement Period relating to such Portion of Investment, and the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $500,000 (except in connection with a reduction to zero of such Portion of Investment),
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to SECTION 1.4(f)(i), to the Portion of Investment with the shortest remaining Yield Period.
Appears in 1 contract
Settlement Procedures. (a) If on any day the outstanding balance of any Transferred Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, the rejected or returned merchandise or services or any cash discount, discount for quick payment or other adjustment by a Seller or any set-off, such Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment (each, an “Originator Deemed Collection”). If the Seller is not the Collection Agent, the Such Seller shall pay to the Collection Agent on or prior to Purchaser, in the next Settlement Date manner provided in Section 2.03(a), within three (3) Business Days, all amounts Originator Deemed Collections deemed to have been received pursuant to this subsection.
(b) Upon discovery by any Seller (the Seller “Affected Seller”) or the Purchaser that at the time of purchase, a breach of any of the representations and warranties made Transferred Relevant Receivable sold by the Affected Seller in Section 4.01(j) with respect to any Transferred hereunder was not an Eligible Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three (3) Business Days following such discovery. The Affected Seller shall, upon not less than two (2) Business Days’ notice from the Purchaser or its assignee or designee, repurchase purchase such Transferred Relevant Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Relevant Receivable or replace such Transferred Relevant Receivable with an equivalent Eligible Receivable, each to occur on the next succeeding Applicable Daily Settlement Date. If such Transferred Relevant Receivable is replaced, with respect to any portion of the outstanding principal balance of the replacement Receivable in excess of the outstanding principal balance of the Transferred Relevant Receivable being replaced, the Purchaser shall pay to the Affected Seller an amount equal to such portion. Each repurchase of a Transferred Relevant Receivable shall include repurchase of the Related Security with respect to such Transferred Relevant Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Relevant Receivable. If the Seller is not the Collection Agent, the The Affected Seller shall pay to the Collection Agent Purchaser on or prior to the next Applicable Daily Settlement Date the repurchase price required to be paid pursuant to this subsectionsubsection as provided in Section 2.03(a).
(c) Except as stated in subsection (a), (b) or (bc) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor designated by such Obligor or, if no Receivables are so designated, in the order of the age of such Receivables, starting accordance with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesCredit and Collection Policy.
Appears in 1 contract
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Servicer Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interests (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the Settlement Date (Capital) for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; provided, further, if such day is a Liquidation Day for one or more Receivable Interests solely by reason of the designation by the Agent for an Investor of a Termination Date for a Receivable Interest pursuant to clause (i)(a) of the definition of Termination Date (and no other event or condition qualifying as a Liquidation Day has occurred), then the Servicer shall periodically notify such Investor Agent of the amounts set aside and held in trust pursuant to this clause (iii) on account of such Receivable Interests (which notice shall be given at such times as the Servicer and such Agent may agree, but no less frequently than weekly), the Banks shall make periodic purchases of the Receivable Interests from the Seller having initial Capital equal to the amounts so set aside and held in trust, the Seller hereby directs such Banks to pay the proceeds of such purchases to the Agent’s Account, for application to the reduction of the outstanding Capital on such Receivable Interests of such Investor, and the amounts so set aside and held in trust shall be paid by the Servicer to the Seller on account of the purchase price of the Receivable Interests so purchased by such Banks; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) On each Settlement Date (Yield and Fees), the Servicer shall deposit into the Agent’s Account Collections held for the Agent and/or the Investors or the Banks pursuant to Section 2.04(b) that relate to the Receivable Interests owned by such Investors and Banks. In addition, during the Revolving Period, on each Settlement Date (Capital) following delivery of a Servicer Report which shows that the Percentage Factor on the last day of the applicable reporting period was greater than the Maximum Percentage Factor, and on each Business Day thereafter until such condition no longer exists, the Servicer shall deposit into the Agent’s Account Collections set aside for the Agent and/or the Investors or the Banks pursuant to clause (iii) of Section 2.04(b); provided that the aggregate amount deposited pursuant to this sentence with respect to any Servicer Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Servicer Report, the Percentage Factor is equal to the Maximum Percentage Factor.
(d) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees and then to the Servicer in payment in full of all accrued Servicer Fee; or
(ii) if such distribution occurs on a Liquidation Day, to the extent the Agent is then holding funds deposited pursuant to the second sentence of Section 2.04(c), to the Investors or the Banks that hold the relevant Receivable Interest in reduction of Capital and then in accordance with clause (iii) below;
(iii) if such distribution occurs on a Liquidation Day, after any payments required in accordance with clause (ii) above, first to the Agent in payment of any amounts owed by the Seller to the Agent pursuant to Section 10.04(a) in connection with out-of-pocket costs and expenses incurred by the Agent, second to the Servicer (if the Servicer is not the Parent or an Affiliate of the Parent) in payment in full of all accrued Servicer Fees, third to the Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield, Fees and Liquidation Fees, fourth to such Investors or Banks in reduction to zero of all Capital, fifth to such Investors, Banks or the Agent in payment of any other amounts owed by the Seller hereunder which have not been paid pursuant to clauses first through fourth above, and sixth to the Servicer (if the Servicer is the Parent or an Affiliate of the Parent) in payment in full of all accrued Servicer Fees. After the Capital, Yield, Fees and Servicer Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks or the Agent hereunder or under any other Transaction Document have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day any Transferred Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If ;
(ii) if on any day any of the Seller representations or warranties contained in Section 4.01(h) is not the Collection Agentno longer true with respect to any Pool Receivable, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Within one Business Day after the end of each Fixed Period in respect of which Yield is computed by reference to the Investor Rate, the Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such Fixed Period with respect to the Receivable Interests held by the Investors and the Banks.
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Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which originated such Receivable shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the such Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection. If any payment of Purchase Price is due to such Seller on such Settlement Date, such Seller may pay such deemed Collection by crediting the cash portion of such Purchase Price in an amount equal to such deemed Collection.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyPurchaser or the relevant Seller, as the case may be, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the such Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection. If any payment of Purchase Price is due to such Seller on such Settlement Date, such Seller may pay such repurchase price by crediting the cash portion of such Purchase Price in an amount equal to such repurchase price.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
(d) Deemed Collections with respect to any Transferred Receivable payable by any Seller under this Section 2.04 shall be paid in Dollars, if such Transferred Receivable is denominated in Dollars, and shall be paid in Canadian Dollars, if such Transferred Receivable is denominated in Canadian Dollars.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, Collection of the Seller Pool Receivables shall be deemed to have received on such day administered by a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall pay provide to the Collection Agent (if other than the Seller) on or prior to a timely basis all information needed for such administration, including notice of the next Settlement Date all amounts deemed to have been received pursuant to this subsectionoccurrence of any Liquidation Day and current computations of the Receivable Interest Percentage.
(b) Upon discovery Within two Business Days following its receipt of any item of payment with respect to the Pool Receivables (including, without limitation, cash, checks, money orders, wire transfers and automated clearing house payments), the Collection Agent shall deposit such item into the Collection Account. Except during the continuance of an Event of Termination or Incipient Event of Termination or as otherwise required in this Agreement, funds received in the Collection Account shall be transferred to an account designated by the Seller for the benefit of the Collection Agent. The Collection Agent shall, on each day on which it receives any such funds:
(i) set aside on its books and hold in trust for the Purchasers or the Purchaser of a breach of any Banks that hold such Receivable Interest out of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, applicable Receivable Interest Percentage of such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price Collections an amount equal to the Outstanding Balance Yield and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Purchasers or the Banks that hold such Receivable Interest the percentage of such Transferred Receivable. Each repurchase Collections represented by such Receivable Interest Percentage, to the extent representing a return of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect Capital, by recomputation of such Transferred Receivable. If Receivable Interest Percentage pursuant to Section 2.04;
(iii) if such day is a Liquidation Day for such Receivable Interest, set aside, hold in trust and segregate for the Seller is not Purchasers or the Collection Agent, Banks that hold such Receivable Interest the Seller shall pay to the Collection Agent entire remainder of such percentage of Collections; provided that if amounts are set aside and held in trust on or any Liquidation Day occurring prior to the next Termination Date, and thereafter during such Settlement Date Period the repurchase price conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be paid reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), apply any Collections in excess of such amounts or in excess of the amounts that are required to be set aside pursuant to this subsectionsubsection (i) above to the payment of any "Purchase Price" (including any "Deferred Purchase Price", as such terms are defined in the Originator Purchase Agreement) then due and release the balance, if any, to the Seller.
(c) Except as stated in subsection On each Settlement Date, the Collection Agent, on behalf of the Seller, shall deposit funds equal to the lesser of (ax) the Collections received or deemed received during the preceding Settlement Period which are held or required to be held for the benefit of the Purchasers or the Banks pursuant to Section 2.06(b) or 2.06(e) and (by) an amount sufficient to make the distributions set forth in clauses (i) and (ii) below in account #4070-3544 at Citibank or to such other account designated by the Agent therefor (provided, however, that so long as the Collection Agent is the Originator and no Event of this Section 2.04 Termination or Incipient Event of Termination has occurred, the Collection Agent may, on the last day of each month following each Settlement Date, retain from such funds an amount equal to the accrued Collection Agent Fee as otherwise required by law of such Settlement Date, instead of including such amount in the deposit made on such Settlement Date.) Upon receipt of such funds, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Purchasers or the underlying ContractBanks that hold the relevant Receivable Interest in payment in full of all accrued Yield and then to the Collection Agent in payment in full of all accrued Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Purchasers or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Yield, second to such Purchasers or Banks in reduction to zero of all Capital, third to such Purchasers, Banks or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital and Yield and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers, the Banks or the Agent hereunder, have been paid in full, all additional Collections from an Obligor of any Transferred with respect to such Receivable Interest shall revert to and be applied paid to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates Seller for its payment for application to specific Receivablesown account.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
Settlement Procedures. (a) If Each Receivable Interest shall begin to liquidate in accordance with this Section 2.06 on the first day of the Fiscal Month following the Purchase Date for such Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Set Receivables are received by it with respect to any Receivable Interest:
(i) in respect of Discount, set aside on its books and hold in trust for the Purchasers or the Banks that hold such Receivable Interest out of the applicable Receivable Interest Percentage of such Collections an amount equal to a fraction of such Collections, the numerator of which shall be the Discount with respect to such Receivable Interest estimated to be collected in the Fiscal Month in which such collection day shall occur and the denominator of which shall be the sum of such Discount and the portion of the Purchase Price of such Receivable Interest estimated to be collected in the Fiscal Month in which such collection day shall occur;
(ii) in respect of Purchase Price, if an Event of Termination or Incipient Event of Termination has occurred and is continuing hereunder, set aside, hold in trust and segregate for the Purchasers or the Banks that hold such Receivable Interest an amount equal to the excess of the applicable Receivable Interest Percentage of such Collections over the amount set aside in respect of Discount pursuant to Section 2.06(b)(i); and
(iii) in respect of Purchase Price, so long as no Event of Termination or Incipient Event of Termination shall have occurred and be continuing hereunder, set aside on its books and hold in trust for the Purchasers or the Banks that hold such Receivable Interest an amount equal to the excess of the applicable Receivable Interest Percentage of such Collections over the amount set aside in respect of Discount pursuant to Section 2.06(b)(i).
(c) For the purposes of this Section 2.06:
(i) if on any day the Outstanding Balance of any Set Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount, other promotional adjustment or other retroactive credit made by the Seller, the Seller shall be deemed to have received on such day a Collection of such Set Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes (of the representations or warranties in whole or in partSection 4.01(i) a Diluted is no longer true with respect to any Set Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Set Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
paragraph (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 subsection 2.06(c), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable in a Receivable Set shall be applied to the Transferred Receivables of such Obligor in such Receivables Set in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent that the Agent, any Purchaser or any Bank shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Purchaser, the Agent or such Bank, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(d) The Collection Agent shall, for the account of the Purchasers or the Banks that hold a Receivable Interest, deposit Collections of Set Receivables in respect of such Receivable Interest in a special account (account number 4070-3544) maintained with Citibank at its address specified on the signature page hereto in the name of the Agent, as follows:
(i) So long as no Event of Termination or Incipient Event of Termination shall have occurred and be continuing hereunder, all amounts set aside in accordance with Section 2.06(b)(i) and (iii) and not previously deposited in such account by the Collection Agent shall be so deposited beginning with the second Settlement Date after the Purchase Date for such Receivable Interest and continuing on each Settlement Date thereafter; provided that if the Seller is the Collection Agent at the time and the Purchasers or the Banks are funding additional Receivable Interests on such Settlement Date, an amount equal to the Purchase Price thereof, if not otherwise paid by the Purchasers or the Banks, as the case may be, to the Seller on such Settlement Date, may be deducted from all such amounts set aside in accordance with Section 2.06(b)(iii); and
(ii) If an Event of Termination or Incipient Event of Termination has occurred and is continuing hereunder, then all amounts set aside in accordance with Section 2.06(b) and not previously deposited in such account by the Collection Agent shall be so deposited promptly upon receipt thereof by the Collection Agent or otherwise as directed by the Agent. Promptly after its receipt of any such deposit, the Agent shall make distribution thereof to the Purchasers or the Banks, as the case may be, for application in respect of Discount and Purchase Price.
(e) After the Purchase Price of, and Discount with respect to, a Receivable Interest have been collected in full by the Purchasers or the Banks, as the case may be, the right to all remaining Collections with respect to such Receivable Interest shall revert to and be paid to the Seller.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, transfer such Collections from the Lock-Box Account(s) and deposit on such day such Collections into the Collection Account. With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) if such day is not a Termination Day, set aside within the Collection Account (or if such day is a Termination Day, transfer to the Liquidation Account) for the benefit of the Purchaser, out of the percentage of such Collections represented by the Participation, first an amount equal to the Discount accrued through such day for each Portion of Investment and not previously set aside and second, to the extent funds are available therefor, an amount equal to the Servicing Fee, the Commitment Fee and the Program Fee accrued through such day for the Participation and not previously set aside; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Purchaser, the remainder of the percentage of such Collections, represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Participation shall be automatically recomputed pursuant to Section 1.3; it being understood, that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not be remitted to the Seller but shall be set aside in the Collection Account for the benefit of the Purchaser in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, (A) transfer to the Liquidation Account for the benefit of the Purchaser (x) the amounts set aside in the Collection Account for the benefit of the Purchaser pursuant to paragraph (i) and (ii) above and not so previously transferred to the Liquidation Account, and (y) the entire remainder of the percentage of the Collections represented by the Participation; provided that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such amounts previously transferred to the Liquidation Account shall, to the extent representing a return on the Investment, be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions; and (B) transfer to the Liquidation Account for the Purchaser the entire remainder of the Collections in the Collection Account represented by the Seller's share of the Collections, if any; provided that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account pursuant to clause (B) above on any Termination Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such previously set aside amounts shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; provided, further, if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation and all other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder shall have been paid in full, any remaining amounts on deposit in the Liquidation Account shall be distributed to the Seller for its own account; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be set aside within the Collection Account pursuant to paragraph (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such other account designated by the Agent), on the last day of each Settlement Period relating to a Portion of Investment:
(i) Collections held on deposit in the Collection Account and the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(i) in respect of accrued Discount and the Program Fees and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Collection Account and the Liquidation Account pursuant to Section 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant to Section 1.4(c) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and third, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not deposited such amounts to its own account pursuant to Section 1.4(c), to the Servicer (payable in arrears on the last day of each calendar month) in payment in full of accrued Servicing Fees so set aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second to the Purchaser in payment in full of such Portion of Investment, third to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, fourth, if Seller or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Investment, and fifth, if the Investment and accrued Discount with respect to each Portion of Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate or other adjustment made by the Seller, any Originator or Servicer, or any setoff or dispute between the Seller, any Originator or the Servicer (if the Servicer is IDI or an Affiliate thereof) and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in paragraphs (in whole f) or in part(l) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller except as provided in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
paragraph (c) Except as stated in subsection (ai) or (bii) of this Section 2.04 1.4(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable after a Termination Day shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Investment of the Participation), the Seller may do so as follows:
(i) the Seller shall give the Agent at least five Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Investment not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Liquidation Account for the benefit of the Purchaser, for payment to the Agent on the last day of the current Settlement Period relating to such Portion of Investment, and the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. the amount of any such reduction shall be not less than $5,000,000 and shall be an integral multiple of $1,000,000, and the entire Investment of the Participation after giving effect to such reduction shall be not less than $5,000,000 unless the entire Investment shall have been reduced to zero,
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to Section 1.4(f)(i), to the Portion of Investment with the shortest remaining Yield Period.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Imperial Sugar Co /New/)
Settlement Procedures. (a) If on any day any Transferred Receivable Purchased Asset becomes (in whole or in part) a Diluted ReceivableReceivable or a Diluted Participation Interest (as the case may be), the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable Purchased Asset in the amount of such Diluted ReceivableReceivable or Diluted Participation Interest (as the case may be). If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred ReceivablePurchased Asset, such party shall give prompt written notice thereof to the other partyPurchaser, the Collection Agent, and the Seller, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable Purchased Asset on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred ReceivablePurchased Asset. Each repurchase of a Transferred Receivable Purchased Asset shall include the Related Security with respect to such Transferred ReceivablePurchased Asset. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred ReceivablePurchased Asset. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Purchased Receivable or Participated Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by the Collection Agent, in accordance with the terms of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day or Provisional Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust for such Purchaser, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to such Purchaser's Yield and Pro Rata Share of the Collection Agent Fee, if any, accrued through such day for such Receivable Interest and not previously set aside; provided, that notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may, if the Seller is the Collection Agent, be comingled with the Seller's other funds prior to their payment to the Purchasers;
(ii) if such day is neither a Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, reinvest on behalf of such Purchaser the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a ProvisiOnal Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections or, if the remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may, if the Seller is the Collection Agent, be commingled with the Seller's other funds prior to their payment to the Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may, if the Seller is then the Collection Agent, be commingled with the Seller's other funds prior to their payment to the Purchasers; and
(vi) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to subsection (i) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, on the first Business Day after each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, however, if Collections have been commingled with the Seller's other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Seller from and to the extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If the Collection Agent is not the Seller, and if a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to pay in full all such amounts): first to the Collection Agent (if other than the Seller or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser, and fourth to such Purchaser in payment of any other amounts owed by the Seller hereunder. After the Capital and Yield with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount or other adjustment made by the Seller or a Seller Subsidiary, or any setoff, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties contained in Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable. If , (x) the Seller is not shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(d), (y) the Seller, any Seller Subsidiary or the Collection AgentAgent (if the Seller or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a manner which materially and adversely affects the collectibility of such Pool Receivable, or (z) any Pool Receivable denominated in a currency other than United States dollars is deemed uncollectible by any Purchaser as a result of the inability of the Obligor thereof to make any payment thereon due to restrictions imposed on the payment of the foreign currency in which such Pool Receivable is denominated outside of the country of such foreign currency, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(d), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, Collection of the Seller Pool Receivables shall be deemed to have received on such day administered by a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall pay provide to the Collection Agent (if other than the Seller) on or prior to a timely basis all information needed for such administration, including notice of the next Settlement Date all amounts deemed to have been received pursuant to this subsectionoccurrence of any Liquidation Day and current computations of each Receivable Interest.
(b1) Upon discovery So long as a BB Downgrade Event (other than the 2005 Downgrade Event and the 2006 Downgrade Events) shall not have occurred the Collection Agent shall, on each day on which Collections of Pool Receivables are received by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(jit:
(1) with respect to any Transferred Receivableeach Receivable Interest, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such party shall give prompt written notice thereof Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the other partyYield, as soon as practicable Fees and Collection Agent Fee (and during the Term Period, an amount equal to the Excess Interest in respect of all Cash Secured Advances) accrued through such day for such Receivable Interest and not previously set aside;
(2) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(3) if such day is a Liquidation Day for any event within three Business Days following one or more Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such discovery. The Seller shall, upon not Receivable Interests (x) if such day is a Liquidation Day for less than two Business Days’ notice from all of the Purchaser or its assignee or designeeReceivable Interests, repurchase the percentage of such Transferred Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the next succeeding Termination Date, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a repurchase price return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(4) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(2) If a BB Downgrade Event (other than the 2005 Downgrade Event and the 2006 Downgrade Events) shall have occurred and be continuing, the Collection Agent shall comply with the following:
(1) If the Collection Agent shall fail to deliver the Daily Report on any Deposit Date during the Revolving Period, the Collection Agent shall not be permitted to withdraw any amounts from the Lock-Box Accounts on such date or any date thereafter unless and until the Collection Agent shall be in compliance with Section 6.02(h) (but subject to the right of the Agent to prohibit withdrawals by the Collection Agent from the Lock-Box Accounts in accordance with the Lock-Box Agreements);
(2) On the first Business Day following each Deposit Date during the Revolving Period, following delivery of the Daily Report to the Agent, if the Daily Report for such date shows that no Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(1) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(2) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside on its books and hold in trust (and, at the request of the Agent, segregate) for the Investors and the Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Outstanding Balance Yield, Fees, and Collection Agent Fee (and during the Term Period, an amount equal to the Excess Interest in respect of all Cash Secured Advances) accrued through such Transferred Receivable. Each repurchase day for the Receivable Interests and not previously set aside;
(3) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a Transferred return of Capital, to be reinvested with the Seller in Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of Interests; provided that, if immediately following any such repurchase reinvestment such Deposit Date would be a Pool Non-compliance Date, the Collection Agent shall retain all such remaining Collections in (or, to the extent the Collection Agent has received any such Collections, redeposit such Collections into) the Lock-Box Accounts (and deposit the other such remaining Collections received by it into the Lock-Box Accounts) to be applied pursuant to Section 2.04(c)(iii)(C); and
(4) remit the Seller Collections to the Seller.
(3) On the first Business Day following each Deposit Date during the Revolving Period, following delivery of the Daily Report to the Agent, if the Daily Report for such date shows that a Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(1) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(2) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside on its books and hold in trust (and, at the request of the Agent, segregate) for the Investors and the Banks that hold the Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees, and Collection Agent Fee (and during the Term Period, an amount equal to the Excess Interest in respect of all Cash Secured Advances) accrued through such day for the Receivable Interests and not previously set aside;
(3) remit to the Cash Collateral Account from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date an amount equal to the lesser of (x) the sum of the remaining Collections in the Lock-Box Accounts (and Collections received by the Collection Agent from the Lock-Box Accounts on such Deposit Date) and the remaining Collections of Pool Receivables received by it on such Deposit Date and (y) an amount equal to the excess of the Required Net Receivables Pool Balance over the Net Receivables Pool Balance;
(4) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests (for purposes of determining the remainder of Purchaser Collections, any Collections which have previously been applied pursuant to Section 2.04(c)(iii)(C) shall be deemed to be a Collection in respect of such Transferred Receivable. If first Seller Collections and then Purchaser Collections); and
(5) remit the Seller is not Collections to the Collection AgentSeller.
(4) On the first Business Day following each Deposit Date during the Amortization Period, the Seller shall pay to the Collection Agent on or prior shall, by no later than 11:00 A.M. (New York City time), remit to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, Agent’s Account all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order Lock-Box Accounts and all Collections of Pool Receivables which the age of Collection Agent received on such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesDeposit Date.
Appears in 1 contract
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective or rejected services, any cash discount or other adjustment made by the Seller or any set-off or dispute in respect of any claim by the Obligor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but EXCLUDING adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor's bankruptcy), the Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the The Seller shall pay remit to the Collection Agent Purchaser Account on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) 4.01 with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following the date of such discovery. The Seller shallshall (to the extent any such breach shall not have been remedied), upon not less than two Business Days’ ' notice from the Purchaser or its assignee assign or designee, repurchase all such Transferred Receivable Receivables under such Contract on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance Purchase Price of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the The Seller shall pay remit to the Collection Agent Purchaser Account on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such each Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes (is reduced or cancelled as a result of Dilution, in whole or in part) a Diluted Receivableany such case, the applicable Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or cancellation. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectionSection 2.04(a). The Collection Agent shall be required to deposit any such amount in the Collection Account no later than the Settlement Date for the applicable Settlement Period.
(b) Upon discovery by the Seller Sellers or the Purchaser of a breach of any of the representations and warranties made by the Seller Sellers in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyparties, as soon as practicable and in any event within three (3) Business Days following such discovery. The applicable Seller shall, upon not less than two (2) Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to to, and in accordance with, this subsectionSection 2.04(b).
(c) Except as stated in subsection (aSections 2.04(a) or (b2.04(b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Herc Holdings Inc)
Settlement Procedures. (a) If Delivery of the Common Shares to the Holders of converted Preferred Securities upon a Conversion Event shall be made in accordance with the procedures set forth below. The Company may make changes to these procedures to the extent such changes are reasonably necessary, in the opinion of the Company, including to reflect changes in clearing system practices. Holders of the Preferred Securities cleared and settled through DTC may elect to have their Common Shares delivered in the form of Common Shares or ADSs in accordance with the procedures set forth herein. The obligation to deliver ADSs if a Holder elects to have its Common Shares delivered in such form will apply only if on the relevant Conversion Settlement Date the Company continues to maintain an ADS depositary facility. In order to obtain delivery of the relevant Common Shares, or, if indicated in the relevant Delivery Notice, ADSs, upon any day any Transferred Receivable becomes (in whole or in part) a Diluted ReceivableConversion from the Conversion Shares Depository, the Seller shall be deemed relevant Holder must deliver its Preferred Securities (other than, in the case of a Capital Reduction, Preferred Securities which Holders elect not to have received on such day convert as provided in the second paragraph under “Conversion Upon Capital Reduction”) and a Collection duly completed Delivery Notice to the specified office of the Paying and Conversion Agent, with a copy of such Transferred Receivable Delivery Notice to the Trustee, on or before the Notice Cut-off Date. Except as otherwise indicated in the amount Conversion Notice, the Delivery Notice shall contain: (i) the name of the Holder (and, where applicable, beneficial owner (or the custodian, broker, nominee or other representative thereof)) of the Preferred Securities to be converted; (ii) the aggregate Liquidation Preference held by such Holder or beneficial owner (or the custodian, broker, nominee or other representative thereof) of such Diluted Receivableconverted Preferred Securities on the date of such notice; (iii) the name in which the Common Shares or ADSs, as applicable, are to be registered, if applicable; (iv) whether Common Shares or ADSs are to be delivered to the Holder (and, where applicable, beneficial owner (or the custodian, broker, nominee or other representative thereof)) of such Preferred Securities; (v) the details of the DTC, Iberclear or other clearing system account (subject to the limitations set out below) to which the Common Shares or ADSs are to be credited (or, if the Common Shares are not a participating security in Iberclear or another clearing system, the address to which the Common Shares should be delivered; and, as the case may be, details of the registered account in the Company’s ADS facility if direct registration ADSs are to be issued); (vi) any relevant certifications and/or representations as may be required by applicable law and regulations; and (vii) such other details as may be required by the Paying and Conversion Agent or any relevant Clearing System. If the Seller Preferred Securities are held through DTC, the Delivery Notice must be given and the Preferred Securities delivered in accordance with the applicable procedures of DTC (which may include the notice being given to the Paying and Conversion Agent by electronic means) and in a form acceptable to DTC and the Paying and Conversion Agent. With respect to any Preferred Securities held in definitive form, the Delivery Notice must be delivered to the specified office of the Paying and Conversion Agent together with the relevant Preferred Securities, except as otherwise indicated in the relevant Conversion Notice. Subject to satisfaction of the requirements and limitations set forth herein and provided that the relevant Preferred Securities and a duly completed Delivery Notice have been delivered not later than the Notice Cut-off Date, the Paying and Conversion Agent shall give instructions to the Conversion Shares Depository that the Conversion Shares Depository shall deliver the relevant Common Shares (as rounded down to the nearest whole number of Common Shares in accordance with the first paragraph under “Upon Conversion” and, where applicable, Section 4.05(d) of the Contingent Convertible Preferred Securities Indenture) to, or shall deposit part or all of such Common Shares with the ADS Depositary on behalf of, the Holder (or, where applicable, beneficial owner (or the custodian, broker, nominee or other representative thereof)) of the relevant Preferred Securities completing such Delivery Notice or its nominee in accordance with the instructions given in such Delivery Notice on the applicable Conversion Settlement Date. Any Delivery Notice shall be irrevocable. Failure properly to complete and deliver a Delivery Notice and deliver the relevant Preferred Securities may result in such Delivery Notice being treated as null and void and the Company shall be entitled to procure the sale of any applicable Common Shares to which the relevant Holder may be entitled in accordance with Section 4.09 of the Contingent Convertible Preferred Securities Indenture (as amended by the Third Supplemental Indenture). Any determination as to whether any Delivery Notice has been properly completed and delivered as provided herein shall be made by the Company in its sole discretion, acting in good faith, and shall, in the absence of manifest error, be conclusive and binding on the relevant Holders and beneficial owners (and any custodian, broker, nominee or other representative thereof). A Holder of the Preferred Securities or Selling Agent (as defined in Section 4.09 of the Contingent Convertible Preferred Securities Indenture (as amended by the Third Supplemental Indenture)) must pay (in the case of the Selling Agent by means of deduction from the net proceeds of sale set forth in such Section 4.09 (as amended by the Third Supplemental Indenture)) any taxes and capital, stamp, issue, registration and transfer taxes or duties arising on Conversion (other than any capital, stamp, issue, registration and transfer taxes or duties payable in the Kingdom of Spain by the Company in respect of the issue and delivery of the Common Shares in accordance with a Delivery Notice delivered pursuant to the Indenture which shall be paid by the Company) and such Holder or the Selling Agent (as the case may be) must pay (in the case of the Selling Agent, by way of deduction from the net proceeds of sale as aforesaid) all, if any, taxes or duties arising by reference to any disposal or deemed disposal of a Preferred Security or interest therein. Any costs incurred by the Conversion Shares Depository or any parent, subsidiary or affiliate of the Conversion Shares Depository in connection with the holding by the Conversion Shares Depository of any Common Shares and any amount received in respect thereof shall be deducted by the Conversion Shares Depository from such amount (or, if such deduction is not the Collection Agentpossible, the Seller shall pay paid to the Collection Agent on or Conversion Shares Depository, by the relevant Holder) prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser delivery of a breach such Common Shares and/or payment of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof amount to the other partyrelevant Holder. If the Company shall fail to pay any capital, stamp, issue, registration and transfer taxes or duties for which it is responsible as provided above, the Holder or Selling Agent, as soon as practicable and in any event within three Business Days following such discovery. The Seller shallthe case may be, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed entitled (but shall not be obliged) to be tender and pay the same and the Company as a Collection separate and independent obligation, undertakes to reimburse and indemnify each Holder or Selling Agent, as the case may be, in respect of any payment thereof and any penalties payable in respect thereof. The Common Shares issued on Conversion will be fully paid and will in all respects rank pari passu with the fully paid Common Shares in issue on the relevant Conversion Notice Date, except in any such Transferred Receivable. If case for any right excluded by mandatory provisions of applicable law and except that such Common Shares will not rank for (or, as the Seller is not the Collection Agentcase may be, the Seller relevant Holder shall pay not be entitled to receive) any rights, distributions or payments the Collection Agent on record date or other due date for the establishment of entitlement for which falls prior to the next Conversion Settlement Date Date. In respect of any Common Shares that Holders elect to receive in the repurchase price required form of ADSs as specified in the Delivery Notice, the Conversion Shares Depository shall deposit with the custodian for the ADS Depositary the relevant number of Common Shares to be paid pursuant issued upon Conversion of the relevant Preferred Securities, and the ADS Depositary shall issue the corresponding number of ADSs to this subsection.
the DTC Participant account or registered ADS facility account specified by such Holders (c) Except as stated per the ADS-to-Common Share ratio in subsection (a) or (b) effect on the Conversion Settlement Date). However, the issuance of this Section 2.04 or as otherwise required the ADSs by law the ADS Depositary may be delayed until the depositary bank or the underlying Contract, custodian receives confirmation that all Collections from an Obligor of any Transferred Receivable shall be applied required approvals have been given and that the Common Shares have been duly transferred to the Transferred Receivables custodian and that all applicable depositary fees and payments have been paid to the ADS Depositary. Holders that elect to receive Common Shares in the form of ADSs must pay any fees that may be payable to the ADS Depositary as a result of the issue and delivery of such Obligor ADSs in the order of the age of such Receivables, starting accordance with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesDelivery Notice.
Appears in 1 contract
Samples: Third Supplemental Indenture (Banco Bilbao Vizcaya Argentaria, S.A.)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective, rejected or returned merchandise or services or any cash discount, discount for quick payment or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or --------- cancellations in whole or in part) a Diluted Receivablerespect of such Obligor's bankruptcy), the Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 2.06 or 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Lexmark International Inc /Ky/)
Settlement Procedures. (a) If Delivery of the Common Shares to the Holders of converted Preferred Securities upon a Conversion Event shall be made in accordance with the procedures set forth below. The Company may make changes to these procedures to the extent such changes are reasonably necessary, in the opinion of the Company, including to reflect changes in Clearing System practices. Holders of the Preferred Securities cleared and settled through DTC may elect to have their Common Shares delivered in the form of Common Shares or ADSs in accordance with the procedures set forth herein. The obligation to deliver ADSs if a Holder elects to have its Common Shares delivered in such form will apply only if on the relevant Conversion Settlement Date the Company continues to maintain an ADS depositary facility. In order to obtain delivery of the relevant Common Shares, or, if indicated in the relevant Delivery Notice, ADSs, upon any day any Transferred Receivable becomes (in whole or in part) a Diluted ReceivableConversion from the Conversion Shares Depository, the Seller shall be deemed relevant Holder or beneficial owner (or the custodian, broker, nominee or other representative thereof) must deliver its Preferred Securities (other than, in the case of a Capital Reduction, Preferred Securities which Holders elect not to have received on such day convert as provided in the second paragraph under “Conversion Upon Capital Reduction”) and a Collection duly completed Delivery Notice to the specified office of the Paying and Conversion Agent, with a copy of such Transferred Receivable Delivery Notice to the Trustee, on or before the Notice Cut-off Date. The Delivery Notice shall contain: (i) the name of the Holder or beneficial owner (or the custodian, broker, nominee or other representative thereof) of the Preferred Securities to be converted; (ii) the aggregate Liquidation Preference held by such Holder or beneficial owner (or the custodian, broker, nominee or other representative thereof) of such converted Preferred Securities on the date of such notice; (iii) the name in which the Common Shares or ADSs, as applicable, are to be registered, if applicable; (iv) whether Common Shares or ADSs are to be delivered to the Holder or beneficial owner of such Preferred Securities; (v) the details of the DTC, Iberclear or other clearing system account (subject to the limitations set out below) to which the Common Shares or ADSs are to be credited (or, if the Common Shares are not a participating security in Iberclear or another clearing system, the address to which the Common Shares should be delivered; and, as the case may be, details of the registered account in the amount of Company’s ADS facility if direct registration ADSs are to be issued); (vi) any relevant certifications and/or representations as may be required by applicable law and regulations; and (vii) such Diluted Receivableother details as may be required by the Paying and Conversion Agent or any relevant Clearing System. If the Seller Preferred Securities are held through DTC, the Delivery Notice must be given and the Preferred Securities delivered in accordance with the applicable procedures of DTC (which may include the notice being given to the Paying and Conversion Agent by electronic means) and in a form acceptable to DTC and the Paying and Conversion Agent. With respect to any Preferred Securities held in definitive form, the Delivery Notice must be delivered to the specified office of the Paying and Conversion Agent together with the relevant Preferred Securities, except as otherwise indicated in the relevant Conversion Notice. Subject to satisfaction of the requirements and limitations set forth herein and provided that the relevant Preferred Securities and a duly completed Delivery Notice have been delivered not later than the Notice Cut-off Date, the Paying and Conversion Agent shall give instructions to the Conversion Shares Depository that the Conversion Shares Depository shall deliver the relevant Common Shares (as rounded down to the nearest whole number of Common Shares in accordance with the first paragraph under “Upon Conversion” and, where applicable, Section 4.05(d) of the Contingent Convertible Preferred Securities Indenture) to, or shall deposit part or all of such Common Shares with the ADS Depositary on behalf of, the Holder or beneficial owner (or the custodian, broker, nominee or other representative thereof) of the relevant Preferred Securities completing such Delivery Notice or its nominee in accordance with the instructions given in such Delivery Notice on the applicable Conversion Settlement Date. Any Delivery Notice shall be irrevocable. Failure properly to complete and deliver a Delivery Notice and deliver the relevant Preferred Securities may result in such Delivery Notice being treated as null and void and the Company shall be entitled to procure the sale of any applicable Common Shares to which the relevant Holder may be entitled in accordance with Section 4.09 of the Contingent Convertible Preferred Securities Indenture. Any determination as to whether any Delivery Notice has been properly completed and delivered as provided herein shall be made by the Company in its sole discretion, acting in good faith, and shall, in the absence of manifest error, be conclusive and binding on the relevant Holders and beneficial owners (and any custodian, broker, nominee or other representative thereof). A Holder of the Preferred Securities or Selling Agent (as defined in Section 4.09 of the Contingent Convertible Preferred Securities Indenture) must pay (in the case of the Selling Agent by means of deduction from the net proceeds of sale set forth in such Section 4.09) any taxes and capital, stamp, issue, registration and transfer taxes or duties arising on Conversion (other than any capital, stamp, issue, registration and transfer taxes or duties payable in the Kingdom of Spain by the Company in respect of the issue and delivery of the Common Shares in accordance with a Delivery Notice delivered pursuant to the Indenture which shall be paid by the Company) and such Holder or the Selling Agent (as the case may be) must pay (in the case of the Selling Agent, by way of deduction from the net proceeds of sale as aforesaid) all, if any, taxes or duties arising by reference to any disposal or deemed disposal of a Preferred Security or interest therein. Any costs incurred by the Conversion Shares Depository or any parent, subsidiary or affiliate of the Conversion Shares Depository in connection with the holding by the Conversion Shares Depository of any Common Shares and any amount received in respect thereof shall be deducted by the Conversion Shares Depository from such amount (or, if such deduction is not the Collection Agentpossible, the Seller shall pay paid to the Collection Agent on or Conversion Shares Depository, by the relevant Holder) prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser delivery of a breach such Common Shares and/or payment of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof amount to the other partyrelevant Holder. If the Company shall fail to pay any capital, stamp, issue, registration and transfer taxes or duties for which it is responsible as provided in the second paragraph above, the Holder or Selling Agent, as soon as practicable and in any event within three Business Days following such discovery. The Seller shallthe case may be, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed entitled (but shall not be obliged) to be tender and pay the same and the Company as a Collection separate and independent obligation, undertakes to reimburse and indemnify each Holder or Selling Agent, as the case may be, in respect of any payment thereof and any penalties payable in respect thereof. The Common Shares issued on Conversion will be fully paid and will in all respects rank pari passu with the fully paid Common Shares in issue on the relevant Conversion Notice Date, except in any such Transferred Receivable. If case for any right excluded by mandatory provisions of applicable law and except that such Common Shares will not rank for (or, as the Seller is not the Collection Agentcase may be, the Seller relevant Holder shall pay not be entitled to receive) any rights, distributions or payments the Collection Agent on record date or other due date for the establishment of entitlement for which falls prior to the next Conversion Settlement Date Date. In respect of any Common Shares that Holders elect to receive in the repurchase price required form of ADSs as specified in the Delivery Notice, the Conversion Shares Depository shall deposit with the custodian for the ADS Depositary the relevant number of Common Shares to be paid pursuant issued upon Conversion of the relevant Preferred Securities, and the ADS Depositary shall issue the corresponding number of ADSs to this subsection.
the DTC Participant account or registered ADS facility account specified by such Holders (c) Except as stated per the ADS-to-Common Share ratio in subsection (a) or (b) effect on the Conversion Settlement Date). However, the issuance of this Section 2.04 or as otherwise required the ADSs by law the ADS Depositary may be delayed until the depositary bank or the underlying Contract, custodian receives confirmation that all Collections from an Obligor of any Transferred Receivable shall be applied required approvals have been given and that the Common Shares have been duly transferred to the Transferred Receivables custodian and that all applicable depositary fees and payments have been paid to the ADS Depositary. Holders that elect to receive Common Shares in the form of ADSs must pay any fees that may be payable to the ADS Depositary as a result of the issue and delivery of such Obligor ADSs in the order of the age of such Receivables, starting accordance with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesDelivery Notice.
Appears in 1 contract
Samples: First Supplemental Indenture (Banco Bilbao Vizcaya Argentaria, S.A.)
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which originated such Receivable shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the such Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection. If any payment of Purchase Price is due to such Seller on such Settlement Date, such Seller may pay such deemed Collection by crediting the cash portion of such Purchase Price in an amount equal to such deemed Collection.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyPurchaser or the relevant Seller, as the case may be, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the such Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection. If any payment of Purchase Price is due to such Seller on such Settlement Date, such Seller may pay such repurchase price by crediting the cash portion of such Purchase Price in an amount equal to such repurchase price.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
(d) Deemed Collections with respect to any Transferred Receivable payable by any Seller under this Section 2.04 shall be paid in Dollars, if such Transferred Receivable is denominated in Dollars, and shall be paid in Canadian Dollars, if such Transferred Receivable is denominated in Canadian Dollars.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) So long as no Level II Downgrade Event shall have occurred, the Collection Agent shall, on each Deposit Date, with respect to Collections deposited in any of the Lock-Box Accounts on such Deposit Date or received by the Collection Agent on such Deposit Date (in the following order and priority):
(i) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Program Agent following the occurrence and during the continuation of a Collection Agent Default, segregate) for the Investors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and/or the Banks that hold such Receivable Interests and for the Investor Agents (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the next succeeding Settlement Date the conditions set forth in Section 3.02 are satisfied or waived by the Program Agent and the Investor Agents, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) If a Level II Downgrade Event shall have occurred and be continuing, the Collection Agent shall comply with the following:
(I) On each Deposit Date during the Revolving Period, the Collection Agent shall, by no later than 3:00 P.M. (New York City time), deliver to the Program Agent and the Investor Agents the Daily Report for such date. If the Collection Agent shall fail to deliver the Daily Report on any Deposit Date during the Revolving Period, the Collection Agent shall not be permitted to withdraw any amounts from the Lock-Box Accounts on any date thereafter unless and until the Collection Agent shall be in compliance with this subsection (I) (but subject to the right of the Agent to prohibit withdrawals by the Collection Agent from the Lock-Box Accounts to the extent provided in Section 6.03).
(II) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that no Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests; provided that, if immediately following any such reinvestment such Deposit Date would be a Pool Non-compliance Date, the Collection Agent shall retain all such remaining Collections in (or, to the extent the Collection Agent has received any such Collections, redeposit such Collections into) the Lock-Box Accounts (and deposit the other such remaining Collections received by it into the Lock-Box Accounts) to be applied pursuant to Section 2.04(c)(III)(iii); and
(iv) remit the Seller Collections to the Seller.
(III) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that a Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) remit to the Cash Collateral Account from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date an amount equal to the lesser of (x) the sum of the remaining Collections in the Lock-Box Accounts (and Collections received by the Collection Agent from the Lock-Box Accounts on such Deposit Date) and the remaining Collections of Pool Receivables received by it on such Deposit Date and (y) an amount equal to the excess of the Required Net Receivables Pool Balance over the Net Receivables Pool Balance;
(iv) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests (for purposes of determining the remainder of Purchaser Collections, any Collections which have previously been applied pursuant to Section 2.04(c)(III)(iii) shall be deemed to be first Seller Collections and then Purchaser Collections); and
(v) remit the Seller Collections to the Seller.
(IV) On the first Business Day following each Deposit Date during the Liquidation Period, the Collection Agent shall, by no later than 3:00P.M. (New York City time), remit to each Investor Agent’s Account for each Investor Agent all Collections held for such Investor Agent, the Investors and/or the Banks in its Group in the Lock-Box Accounts and such Investor Agent’s pro-rata portion of all Collections of Pool Receivables which the Collection Agent received on such Deposit Date.
(d) The Collection Agent shall deposit into the Investor Agent’s Account for each Investor Agent (i) on each Settlement Date, Collections held for such Investor Agent, the Investors and/or the Banks in its Group during the prior calendar month pursuant to Sections 2.04(b)(i), 2.04(c)(II)(ii) and 2.04(c)(III)(ii), (excluding, however, so long as the Originator is the Collection Agent, the Collection Agent Fee) and (ii) on the Settlement Date for each Receivable Interest, Collections held for such Investor Agent, the Investors and/or the Banks in its Group that relate to such Receivable Interest pursuant to Section 2.04(b) or (c) (other than as set forth in clause (i)). After the occurrence and during the continuation of Level I Downgrade Event which is not a Level II Downgrade Event, on the Business Day immediately following the delivery of any Weekly Report which sets forth a Pool Non-Compliance Date as of the close of business on the last Business Day of the preceding Week, and on each Business Day thereafter until a Pool Non-Compliance Date no longer exists, the Collection Agent shall deposit into the Investor Agent’s Account for each Investor Agent Collections set aside for such Investor Agent, the Investors and/or Banks in its Group pursuant to clause (iii) of Section 2.04(b), provided that the aggregate amount deposited pursuant to this sentence with respect to any Weekly Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital, the sum of the Receivable Interests is equal to 100%. The Collection Agent shall pay to itself on each Settlement Date which is not a Liquidation Day Collections set aside with respect to each Receivable Interest on account of accrued Collection Agent Fee. On any Business Day on which funds are on deposit in the Cash Collateral Account, the Collection Agent (i) shall, upon written notice from the Program Agent or any of the Investor Agents, and may (if the funds in the Cash Collateral Account exceed $10,000,000), upon written notice to the Program Agent and the Investor Agents, remit such funds from the Cash Collateral Account to the Investor Agent’s Account for each Investor Agent, such remittance to be applied as a reduction of Capital, or (ii) may, following delivery of the Weekly Report or Daily Report to the Program Agent, as the case may be, withdraw from the Cash Collateral Account and remit to the Seller all or a portion of the funds in the Cash Collateral Account; provided that such Weekly Report or Daily Report, as the case may be, shall state that, after taking account of the proposed withdrawal, the Net Receivables Pool Balance on such day will be equal to or greater than the Required Net Receivables Pool Balance, and such Weekly Report or such Daily Report, as the case may be, shall set forth the calculation supporting such statement.
(e) Upon receipt of funds deposited into the Investor Agent’s Account, the relevant Investor Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group; provided, that if such distribution related to Collections remitted from the Cash Collateral Account, such distribution shall be paid to the Investors and the Banks in its Group that hold the Receivable Interest in respect thereof, in reduction of Capital.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Yield and Fees, second to such Investors and/or Banks in reduction to zero of all Capital, third to such Investors, Banks or such Investor Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors and Banks in its Group. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks, the Investor Agents or the Program Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(f) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, rejected or returned merchandise or services, or any cash discount, discount for quick payment or other adjustment made by the Seller or the Originator, or any setoff, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on reduction or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.adjustment;
(bii) Upon discovery by the Seller if on any day upon each purchase or the Purchaser of a breach of reinvestment (A) any of the representations and or warranties made by the Seller contained in Section 4.01(j4.01(h) is no longer true with respect to any Transferred ReceivablePool Receivable or (B) the Investors or the Banks, such party as the case may be, shall give prompt written notice thereof not acquire a valid and perfected first priority undivided percentage ownership interest to the other party, as soon as practicable extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security and Collections with respect to such Transferred Receivable. The proceeds of any such repurchase thereto, then the Seller shall be deemed to be have received on such day a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.Pool Receivable in full;
(ciii) Except except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(f), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Program Agent, any of the Investor Agents, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Program Agent, such Investor Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) In the event that the Program Agent or any Investor Agent receives Collections in respect of any Receivable directly from an Obligor, such Agent shall, at its option, either (i) promptly forward such Collections to the Collection Agent (and the Collection Agent shall apply such Collections in accordance with this Section 2.04) or (ii) promptly apply such Collections in accordance with this Section 2.04 in the same manner that Collection Agent would apply such Collections.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole respect of such Obligor's bankruptcy, insolvency or in part) a Diluted Receivablesimilar event), the Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.subsection during the related Fiscal Month. [Purchase and Contribution Agreement]
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and or warranties made by the such Seller in Section 4.01(j4.01(i) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The If such breach cannot be cured, such Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of to such Transferred Receivable. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent under the Sale Agreement on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Receivables Purchase and Contribution Agreement (Coltec Industries Inc)
Settlement Procedures. (a) If on any day any Transferred a Purchased Receivable becomes (in whole or in part) shall become a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of the Diluted Receivable and the Seller shall promptly (and, in any event, no later than the next succeeding Settlement Date) pay such Diluted Receivableamount to the Purchaser or the Purchaser's assignee. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(ba) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three five Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(cb) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall will be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivableheld as unapplied cash, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Personal Care Holdings Inc)
Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by the Collection Agent in accordance with the terms of this Agreement. The Seller shall provide to the Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day or Provisional Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust for such Purchaser, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to such Purchaser's Yield and Pro Rata Share of the Collection Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued through such day for such Receivable Interest and not previously set aside; provided, that notwithstanding the preceding clause, unless the -------- Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers;
(ii) if such day is neither a Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, reinvest on behalf of such Purchaser (such reinvestment to be deemed a Purchase of a Receivable Interest by such Purchaser) the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional -------- Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections or, if the remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, notwithstanding the preceding clause, unless the -------- Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding -------- clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers; and
(vi) release to the Seller for its own account any Collections in excess of such amounts allocated pursuant to subsections (i) through (v) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, on each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, -------- however, if Collections have been commingled with the Collection Agent's other ------- funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Collection Agent from and to the extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to pay in full all such amounts): first to the Collection Agent (if other than Georgia-Pacific or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser, fourth to such Purchaser in payment of any other amounts owed by the Seller to such Purchaser under this Agreement, fifth to the Administrative Agent in payment of amounts owed by the Seller to the Administrative Agent under this Agreement and sixth to the Collection Agent (if Georgia-Pacific or its designee). After the Capital and Yield with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Transferred Pool Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount or other adjustment made by the Seller or an Originator, or any right of setoff is exercised by the Obligor thereunder, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties contained in whole Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable, (x) the Seller shall fail to perform or observe any term, covenant or agreement contained in partSection 5.01(d), or (y) the Seller or any Originator or the Collection Agent (if Georgia-Pacific or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a Diluted manner which materially and adversely affects the collectibility of such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(d), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article IV of this Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections into Collection Accounts. Subsequently, the Collection Agent shall forthwith cause all such Collections received in the Collection Accounts to be transferred into the Controlled Account within one Business Day; provided that, if the balance in any such Collection Account is less than $50,000, the Collection Agent shall not be obligated to transfer any amounts from such Collection Account as long as the account balance remains less than $50,000 and also as long as the balance is transferred according to a standing order (a “Threshold Basis”). Additionally, with respect to Collection Accounts that have balances less than $50,000 and whose balances are not transferred on a Threshold Basis, the Collection Agent will transfer funds manually from such accounts on a weekly basis. Any Amounts transferred pursuant to this Section 1.04(a) may be in an amount that leaves up to $10,000 remaining in each such Collection Account. The Seller shall provide to the Collection Agent (if other than United Rentals) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest in the Pool Receivables.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received or deemed received by it pursuant to this Agreement with respect to any Receivable Interest in the Pool Receivables:
(i) set aside and hold in trust (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited) for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables and for the Administrative Agent, out of the percentage of such Collections attributable to such Receivable Interest in the Pool Receivables, an amount equal to the Yield, all fees and payments due pursuant to each of the Fee Agreements, and the Collection Agent Fee accrued through such day for such Receivable Interest in the Pool Receivables and not previously set aside;
(ii) if such day is not a Liquidation Day, reinvest with the Seller, on behalf of the Investors or the Banks that hold such Receivable Interest in the Pool Receivables, the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest in the Pool Receivables pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust the entire remainder of such percentage of Collections for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited); provided, however, that if the Liquidation Day resulted solely by reason of the non-satisfaction of the initial purchase conditions (as set forth in paragraph 1 of Exhibit II) and such conditions are subsequently satisfied or are waived by the Purchaser Agents and written notice is provided to the Rating Agencies rating the Commercial Paper, any amounts that have been set aside and held in trust pursuant to this clause (iii) shall be reinvested in accordance with the preceding clause (ii); provided that the Event of Termination identified as paragraph (g) of Exhibit V cannot be waived by the Purchaser Agents; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing clause (ii) or the first proviso to clause (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to clause (i) above.
(c) On the Settlement Day for a Receivable Interest in the Pool Receivables the Collection Agent shall deposit, as applicable, (i) with the Administrative Agent for its own account, Collections held for the Administrative Agent that relate to any fees owed to the Administrative Agent pursuant to the Scotia Capital Fee Agreement and any other accrued and unpaid amounts owed to the Administrative Agent by the Seller hereunder pursuant to Section 1.04(b)(i), (ii) into each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i), and (iii) with the Administrative Agent for transfer to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii).
(d) Upon receipt of funds deposited into its Purchaser Agent’s Account, the related Purchaser Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield, all fees and payments due pursuant to each of the Fee Agreements, and second to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees if the Collection Agent is not United Rentals or an Affiliate of United Rentals, second to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield and all fees and payments due pursuant to each of the Fee Agreements, third to such Investors or Banks, pro rata, in reduction to zero of all Capital, fourth to such Investors or Banks or the Administrative Agent or the Purchaser Agents or any Indemnified Party or Affected Person, pro rata, in payment of any other accrued and unpaid amounts owed by the Seller hereunder, and fifth to the Collection Agent, if United Rentals or an Affiliate of United Rentals is the Collection Agent, in payment in full of all accrued and unpaid Collection Agent Fees. After the Capital and Yield and accrued and unpaid Collection Agent Fees with respect to a Receivable Interest in the Pool Receivables, and any other amounts payable by the Seller to the Investors, the Banks, the Administrative Agent or the Purchaser Agents hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest in the Pool Receivables and any excess cash Collateral shall be paid to the Seller for its own account.
(e) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any Dilution, or any setoff or dispute between the Originator and an Obligor due to a claim arising out of the same or any other transaction, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable Responsible Officer of the Company becomes aware that the representation and warranty in paragraph (in whole or in parth) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in full; and
(iii) if and to the amount of such Diluted Receivable. If extent the Seller is not the Collection Administrative Agent, the Seller Purchaser Agents, any Investors or any Bank or any Indemnified Party or Affected Person shall be required for any reason to pay over to an Obligor (or to any trustee, receiver, custodian or similar official in any proceeding of the Collection Agent on or prior to the next Settlement Date all amounts type contemplated by paragraph (g) of Exhibit V) any amount received by it hereunder, such amount shall be deemed not to have been so received pursuant but rather to this subsectionhave been retained by the Seller, and, accordingly, the Administrative Agent, the Purchaser Agents, the Investors or the Banks, or the Indemnified Parties or the Affected Persons, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(cf) Except as stated provided in subsection (aSection 1.04(e)(i) or (b) of this Section 2.04 ii), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
(g) The Seller shall forthwith deliver (i) to the Collection Agent an amount equal to all Collections deemed received by the Seller pursuant to Section 1.04(e)(i) or (ii) above and the Collection Agent shall hold or reinvest such Collections in accordance with Section 1.04(b), or (ii) if Collections are then being paid to the Administrative Agent or the Controlled Account directly or indirectly owned or controlled by the Administrative Agent, the Seller shall forthwith cause such deemed Collections to be paid to the Administrative Agent or such Controlled Account. So long as the Seller shall hold any Collections or deemed Collections required to be paid to the Collection Agent, the Administrative Agent, a Purchaser Agent, a Purchaser, a Bank, an Indemnified Party, or an Affected Person, it shall hold such Collections in trust (and, at the request of the Administrative Agent or any Purchaser Agent, separate and apart from its own funds and shall clearly xxxx its records to reflect such trust).
(h) With respect to each Bank that is a Nonrenewing Bank that has not been replaced by another Bank pursuant to Section 1.13 (any such Purchaser a “Non-Extending Bank”), the Collection Agent shall implement the procedures set forth in this Section 1.04(h) (a “Partial Liquidation”). On each Business Day prior to such Non-Extending Bank’s Bank Commitment being reduced to zero (provided that no Event of Termination has occurred and is continuing), the Collection Agent shall apply funds out of the Collections represented by the Receivable Interest received and not previously applied in the following manner:
(i) set aside and hold in trust in the Collection Account, for the benefit of the Non-Extending Banks and their related Purchasers an amount equal to all Yield and fee(s) and other payments owed under the Fee Agreements (based on the Receivable Interest at such time), in each case accrued through such day and not so previously set aside or paid. The Collection Agent shall thereafter pay to each applicable Purchaser Agent (ratably according to accrued Yield and fees and other payments owed under the Fee Agreements) on the last day of each Settlement Period for the Non-Extending Banks the amount of such accrued and unpaid fees and other payments owed under the Fee Agreements and Yield;
(ii) pay to each applicable Purchaser Agent for the account of each Non-Extending Bank, if any, related to such Purchaser Agent (ratably based on the Bank Commitment of the Non-Extending Bank at such time), and, for the account of any related Purchasers solely to the extent necessary to reduce such Purchaser’s pro rata portion of the Purchase Limit to an amount that is equal to or lesser than the amount of any available Bank Commitment of any remaining Banks related to such Purchaser at such time, from such Collections remaining after application pursuant to clause (i) above, the amount of such Bank Commitment of the Non-Extending Bank; provided that, solely for purposes of determining such Non-Extending Bank’s ratable share of such Collections, such Bank Commitment shall be deemed to remain constant from the date such Bank becomes a Non-Extending Bank until the date such Bank Commitment of the Non-Extending Bank has been paid in full; it being understood that if such day is also a Termination Date or a day on which an Event of Termination has occurred, the Bank Commitment of the Non-Extending Bank shall be recalculated at such time (taking into account amounts received by or on behalf of such Bank in respect of its Capital pursuant to this clause (ii)), and thereafter Collections shall be set aside for payment to all Investors (ratably according to the Bank Commitment of such Non-Extending Bank) pursuant to paragraph (d) above; and
(iii) reinvest the balance of such Collections in respect of Capital to the acquisition of additional undivided percentage interests pursuant to Section 1.02 hereof.
(i) Within one Business Day after the end of each Fixed Period, each Purchaser Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and fees for such Fixed Period with respect to the Receivable Interests held by such Purchaser Agent’s related Investors.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United Rentals Inc /De)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, transfer such Collections from the Lock-Box Accounts and deposit such Collections into the Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) set aside for the benefit of the Purchaser, out of the percentage of such Collections represented by the Participation, first an amount equal to the Discount accrued through such day for each Portion of Investment and not previously set aside and second, to the extent funds are available therefor, an amount equal to the Servicing Fee, the Utilization Fee, the Commitment Fee and Breakage Costs accrued through such day and not previously set aside; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Purchaser, the remainder of the percentage of such Collections, represented by the Participation, to the extent representing a return on the Investment; such Collections shall automatically remain invested in the Participation; it being understood, that prior to so remitting to the Seller the remainder of such Collections, the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed one hundred percent (100%) on such day, such Collections shall not be remitted to the Seller but shall remain in the Collection Account for the benefit of the Purchaser in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, maintain in the Collection Account for the Purchaser the entire remainder of the percentage of the Collections represented by the Participation; provided that so long as the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, the amount so maintained in the Collection Account shall be remitted to the Seller and remain invested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to remain invested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of the sum of (x) such amounts, (y) the amounts that are required to be maintained in the Collection Account pursuant to paragraph (i) above and (z) in the event an Originator is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser’s Account (or such other account designated by the Agent), on each Settlement Date, Collections held on deposit in the Collection Account pursuant to Section 1.4(b)(i) in respect of the accrued Utilization Fee, accrued Commitment Fee and accrued Breakage Costs (if any). The Servicer shall deposit into the Purchaser’s Account (or such other account designated by the Agent), on the last day of each Yield Period relating to a Portion of Investment:
(i) Collections held on deposit in the Collection Account pursuant to Section 1.4(b)(i) in respect of accrued Discount with respect to such Portion of Investment;
(ii) Collections held on deposit in the Collection Account pursuant to Section 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Collection Account pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment. On each Settlement Date, the Servicer shall deposit to its own account, from Collections held on deposit in the Collection Account pursuant to Section 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser’s Account pursuant to the first sentence of Section 1.4(c), the Agent shall cause such funds to be distributed to the Purchaser in payment of the accrued and unpaid Utilization Fee, Commitment Fee and Breakage Costs (if any). Upon receipt of funds deposited into the Purchaser’s Account pursuant to the second sentence of Section 1.4(c) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, and second to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto pursuant to Section 1.7, Section 1.8, Section 3.1, or Section 5.4; and
(ii) if such distribution occurs on a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second to the Purchaser in payment in full of such Portion of Investment, and third to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder. After the Investment, the accrued and unpaid Utilization Fee, the accrued and unpaid Commitment Fee, the accrued and unpaid Discount, the accrued and unpaid Servicing Fee, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, damaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by the Seller, any Originator or Servicer, or any setoff or dispute between the Seller, any Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes of the representations or warranties in paragraphs (in whole e), (f) or in part(k) a Diluted of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in full;
(iii) If an Obligor makes a payment but does not designate the amount of Receivable to which such Diluted Receivable. If payment applies, then the Seller is Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided that if the Obligor does not direct the Collection Agent, the Seller shall pay Servicer to the Collection Agent on apply such payment to a particular Receivable or prior to the next Settlement Date all amounts deemed to have Receivables within thirty (30) days after such payment has been received pursuant to this subsection.
(b) Upon discovery in a Lock-Box Account or by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred ReceivableServicer, such party shall give prompt written notice thereof to the other partythen, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or except as otherwise required by applicable law or the underlying relevant Contract, all Collections from an Obligor of any Transferred Receivable such payment shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the entire Investment or any Portion of Investment, the Seller may do so as follows:
(i) the Seller shall give the Agent at least five (or in the case of any reduction of a Portion of Investment which is not a reduction of the entire Investment, one) Business Days’ prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to the Investment or such Portion of Investment (including to any related Discount) not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Collection Account for the benefit of the Purchaser, for payment to the Agent on the last day of the current Yield Period relating to the Investment or such Portion of Investment (and in the case of a reduction of the entire Investment, the Servicer shall hold in the Collection Account for payment on such date an amount equal to all other obligations of the Seller or Servicer to the Purchaser, the Agent and each other Indemnified Party or Affected Person hereunder), and the Investment or the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. the amount of any such reduction shall be not less than one million dollars ($1,000,000) and shall be an integral multiple of one hundred thousand dollars ($100,000), and the entire Investment of the Participation after giving effect to such reduction shall be not less than one million dollars ($1,000,000) unless the entire Investment shall have been reduced to zero,
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless such Obligor designates its payment for application the Seller shall otherwise specify in the notice given pursuant to specific ReceivablesSection 1.4(f)(i), to the Portion of Investment with the shortest remaining Yield Period.
Appears in 1 contract
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Servicer, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside and hold in trust (but not physically segregate) for the Banks that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Servicer Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Banks on a pro rata basis the percentage of such Collections represented by such Receivable Interest (net of any amounts set aside pursuant to Section 2.04(b)(i));
(iii) if such day is a Liquidation Day for (x) any one or more (but not all) Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Banks, the percentage of such Collections represented by such Receivable Interests, or (y) all of the Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) all of the remaining Collections received by the Servicer on such date (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date for the applicable Receivable Interest, and thereafter prior to the next occurring Settlement Date (Capital) the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) [Intentionally Omitted].
(d) The Servicer shall deposit into the Agent’s Account, (i) on the Settlement Date (Yield and Fees) for each Receivable Interest, Collections held for the Banks with respect to Yield, Fees and other amounts (other than Capital) that relate to such Receivable Interest pursuant to Section 2.04(b), (ii) on each Settlement Date (Capital) following delivery of a Seller Report which shows that the Aggregate Capital exceeded the Collateral Availability (as of the related Reporting Date), all other Collections held for the Banks pursuant to clause (iii) of Section 2.04(b); provided, however, that the aggregate amount deposited in the Agent’s Account pursuant to this clause (ii) with respect to any Seller Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the Aggregate Capital is equal to the largest multiple of $1,000,000 that does not exceed the Collateral Availability and (iii) on each Settlement Date (Capital) on which Collections are held for the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the preceding clause (ii) of this Section 2.04(d), all such remaining Collections.
(e) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Banks and to the Agent in ratable payment in full of all accrued Yield and Fees and then to the Servicer in payment in full of all accrued Servicer Fee; and
(ii) if such distribution occurs on a Liquidation Day, first to the Banks and to the Agent in ratable payment in full of all accrued Yield and Fees, second to the Banks ratably in reduction to zero of all Capital, third to the Banks or the Agent in payment of any other amounts owed by the Seller hereunder or under any other Transaction Document, and fourth to the Servicer in payment in full of all accrued Servicer Fee. After the payment in full of Capital, Yield, Fees and the Servicer Fee with respect to all Receivable Interests, and any other amounts payable by the Seller to the Banks or the Agent or the Servicer hereunder or under any other Transaction Document, including, without limitation, any reimbursement obligations of the Seller with respect to any indemnity provided by the Agent under any Deposit Account Agreement (such aggregate amount, the “Termination Amount”), all additional Collections with respect to the Receivable Interests shall be paid to the Seller for its own account.
(f) For the purposes of this Section 2.04:
(i) if on any day any Transferred Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If ;
(ii) if on any day any of the Seller representations or warranties contained in Section 4.01(h) is not the Collection Agentno longer true with respect to any Pool Receivable, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant to this subsection.on such day a Collection of such Pool Receivable in full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(f), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables;
(iv) if and to the extent the Agent or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) On the Facility Termination Date, the Seller shall pay to the Agent for its account and the account of the Banks and the Servicer the Termination Amount.
(h) All amounts payable by the Seller or the Servicer under this Agreement to the Agent for its own account or for the account of the Banks shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Banks under this Agreement shall be payable in Dollars.
(i) All payments in respect of Yield and Capital (x) shall be apportioned among all Receivable Interests to which such payments relate and (y) shall be made to each Bank on a pro rata basis in accordance with such Bank’s Percentage.
Appears in 1 contract
Samples: Receivables Purchase Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article IV of this Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections into Collection Accounts. Subsequently, the Collection Agent shall forthwith cause all such Collections received in the Collection Accounts to be transferred into the Controlled Account within one Business Day; provided that, if the balance in any such Collection Account is less than $50,000, the Collection Agent shall not be obligated to transfer any amounts from such Collection Account as long as the account balance remains less than $50,000 and also as long as the balance is transferred according to a standing order (a “Threshold Basis”). Additionally, with respect to Collection Accounts that have balances less than $50,000 and whose balances are not transferred on a Threshold Basis, the Collection Agent will transfer funds manually from such accounts on a weekly basis. Any Amounts transferred pursuant to this Section 1.04(a) may be in an amount that leaves up to $10,000 remaining in each such Collection Account. The Seller shall provide to the Collection Agent (if other than United Rentals) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest in the Pool Receivables.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received or deemed received by it pursuant to this Agreement with respect to any Receivable Interest in the Pool Receivables:
(i) set aside and hold in trust (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited) for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables and for the Administrative Agent, out of the percentage of such Collections attributable to such Receivable Interest in the Pool Receivables, an amount equal to the Yield, all fees and payments due pursuant to each of the Fee Agreements, and the Collection Agent Fee accrued through such day for such Receivable Interest in the Pool Receivables and not previously set aside;
(ii) if such day is not a Liquidation Day, reinvest with the Seller, on behalf of the Investors or the Banks that hold such Receivable Interest in the Pool Receivables, the remainder of such percentage of Collections, to the extent representing a return of Capital, by recomputation of such Receivable Interest in the Pool Receivables pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust the entire remainder of such percentage of Collections for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other funds are deposited); provided, however, that if the Liquidation Day resulted solely by reason of the non-satisfaction of the initial purchase conditions (as set forth in paragraph 1 of Exhibit II) and such conditions are subsequently satisfied or are waived by the Purchaser Agents and written notice is provided to the Rating Agencies rating the Commercial Paper, any amounts that have been set aside and held in trust pursuant to this clause (iii) shall be reinvested in accordance with the preceding clause (ii); provided that the Event of Termination identified as paragraph (g) of Exhibit V cannot be waived by the Purchaser Agents; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing clause (ii) or the first proviso to clause (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to clause (i) above.
(c) On (x) the Settlement Day for a Receivable Interest in the Pool Receivables the Collection Agent shall deposit, as applicable, (i) with the Administrative Agent for its own account, Collections held for the Administrative Agent that relate to any fees owed to the Administrative Agent pursuant to the Scotia Capital Fee Agreement and any other accrued and unpaid amounts owed to the Administrative Agent by the Seller hereunder pursuant to Section 1.04(b)(i), (ii) into each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i), and (iii) with the Administrative Agent for transfer to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii); provided, that, in the event any Bank is a Delaying Bank at the time of transfer of such Collections by the Administrative Agent to each Purchaser Agent’s Account pursuant to this clause (iii), then such amounts shall be transferred by the Administrative Agent, first to the Purchaser Agent’s Account of each Purchaser Agent whose Related Banks are each Non-Delaying Banks ratably according to the amount then owed to each Investor or Bank related to each such Purchaser Agent, until the aggregate outstanding Capital of Receivable Interests in the Pool Receivables held by each Bank plus, in the event such Bank has any related Purchasers, such Bank’s ratable share of the outstanding Capital of Receivable Interests in the Pool Receivables held by such related Purchasers is equal to such Bank’s ratable share (based on the applicable Bank’s Percentage) of the aggregate outstanding Capital of Receivable Interests in the Pool Receivables, and second to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank and (y) any Liquidation Day that occurs at such time that there is a Delaying Bank, upon the request of the Purchaser Agents whose Related Banks are each Non-Delaying Banks, the Collection Agent shall deposit with the Administrative Agent for transfer to the Purchaser Agent’s Account of each such Purchaser Agent ratably according to the amount then owed to each Investor or Bank related to each such Purchaser Agent, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(iii) in an amount required for application in full under item “first” contained in the proviso at the end of Section 1.04(c)(x)(iii).
(d) Upon receipt of funds deposited into its Purchaser Agent’s Account, the related Purchaser Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield, all fees and payments due pursuant to each of the Fee Agreements, and second to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Collection Agent in payment in full of all accrued and unpaid Collection Agent Fees if the Collection Agent is not United Rentals or an Affiliate of United Rentals, second to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield and all fees and payments due pursuant to each of the Fee Agreements, third to such Investors or Banks, pro rata, in reduction to zero of all Capital, fourth to such Investors or Banks or the Administrative Agent or the Purchaser Agents or any Indemnified Party or Affected Person, pro rata, in payment of any other accrued and unpaid amounts owed by the Seller hereunder, and fifth to the Collection Agent, if United Rentals or an Affiliate of United Rentals is the Collection Agent, in payment in full of all accrued and unpaid Collection Agent Fees. After the Capital and Yield and accrued and unpaid Collection Agent Fees with respect to a Receivable Interest in the Pool Receivables, and any other amounts payable by the Seller to the Investors, the Banks, the Administrative Agent or the Purchaser Agents hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest in the Pool Receivables and any excess cash Collateral shall be paid to the Seller for its own account.
(e) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any Dilution, or any setoff or dispute between the Originator and an Obligor due to a claim arising out of the same or any other transaction, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable Responsible Officer of the Company becomes aware that the representation and warranty in paragraph (in whole or in parth) a Diluted of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in full; and
(iii) if and to the amount of such Diluted Receivable. If extent the Seller is not the Collection Administrative Agent, the Seller Purchaser Agents, any Investors or any Bank or any Indemnified Party or Affected Person shall be required for any reason to pay over to an Obligor (or to any trustee, receiver, custodian or similar official in any proceeding of the Collection Agent on or prior to the next Settlement Date all amounts type contemplated by paragraph (g) of Exhibit V) any amount received by it hereunder, such amount shall be deemed not to have been so received pursuant but rather to this subsectionhave been retained by the Seller, and, accordingly, the Administrative Agent, the Purchaser Agents, the Investors or the Banks, or the Indemnified Parties or the Affected Persons, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(cf) Except as stated provided in subsection (aSection 1.04(e)(i) or (b) of this Section 2.04 ii), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
(g) The Seller shall forthwith deliver (i) to the Collection Agent an amount equal to all Collections deemed received by the Seller pursuant to Section 1.04(e)(i) or (ii) above and the Collection Agent shall hold or reinvest such Collections in accordance with Section 1.04(b), or (ii) if Collections are then being paid to the Administrative Agent or the Controlled Account directly or indirectly owned or controlled by the Administrative Agent, the Seller shall forthwith cause such deemed Collections to be paid to the Administrative Agent or such Controlled Account. So long as the Seller shall hold any Collections or deemed Collections required to be paid to the Collection Agent, the Administrative Agent, a Purchaser Agent, a Purchaser, a Bank, an Indemnified Party, or an Affected Person, it shall hold such Collections in trust (and, at the request of the Administrative Agent or any Purchaser Agent, separate and apart from its own funds and shall clearly mark its records to reflect such trust).
(h) With respect to each Bank that is a Nonrenewing Bank that has not been replaced by another Bank pursuant to Section 1.13 (any such Bank, a “Non-Extending Bank”), the Collection Agent shall implement the procedures set forth in this Section 1.04(h). On each Business Day prior to such Non-Extending Bank’s Bank Commitment being reduced to zero (provided that no Event of Termination has occurred and is continuing), the Collection Agent shall apply funds out of the Collections represented by the Receivable Interest received and not previously applied in the following manner:
(i) set aside and hold in trust in the Collection Account, for the benefit of the Non-Extending Banks and their related Purchasers, if any, an amount equal to all Yield and fee(s) and other payments owed under the Fee Agreements (based on the Receivable Interest at such time), in each case accrued through such day and not so previously set aside or paid. The Collection Agent shall thereafter pay to each applicable Purchaser Agent (ratably according to accrued Yield and fees and other payments owed under the Fee Agreements) on the last day of each Settlement Period for the Non-Extending Banks the amount of such accrued and unpaid fees and other payments owed under the Fee Agreements and Yield;
(ii) pay to each applicable Purchaser Agent for the account of each Non-Extending Bank, if any, related to such Purchaser Agent (ratably based on the Bank Commitment of the Non-Extending Bank at such time), and, in the event such Non-Extending Bank has any related Purchasers, for the account of such related Purchasers solely to the extent necessary to reduce any such Purchaser’s pro rata portion of the Purchase Limit to an amount that is equal to or lesser than the amount of any available Bank Commitment of any remaining Banks related to any such Purchaser at such time, from such Collections remaining after application pursuant to clause (i) above, the amount of such Bank Commitment of the Non-Extending Bank; provided that, solely for purposes of determining such Non-Extending Bank’s ratable share of such Collections, such Bank Commitment shall be deemed to remain constant from the date such Bank becomes a Non-Extending Bank until the date such Bank Commitment of the Non-Extending Bank has been paid in full; it being understood that if such day is also a Termination Date or a day on which an Event of Termination has occurred, the Bank Commitment of the Non-Extending Bank shall be recalculated at such time (taking into account amounts received by or on behalf of such Bank in respect of its Capital pursuant to this clause (ii)), and thereafter Collections shall be set aside for payment to all Investors (ratably according to the Bank Commitment of such Non-Extending Bank) pursuant to paragraph (d) above; and
(iii) reinvest the balance of such Collections in respect of Capital to the acquisition of additional undivided percentage interests pursuant to Section 1.02 hereof.
(i) Within one Business Day after the end of each Fixed Period, each Purchaser Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and fees for such Fixed Period with respect to the Receivable Interests held by such Purchaser Agent’s related Investors.
Appears in 1 contract
Samples: Assignment and Acceptance Agreement and Amendment (United Rentals North America Inc)
Settlement Procedures. (a) If on any day the --------------------- Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against the related Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, --------- reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor's bankruptcy), the such Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction or adjustment. If the such Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection [Purchase and Contribution Agreement] in respect of such Transferred Receivable. If the applicable Seller is not the Collection AgentServicer, the such Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Mail Well Inc)
Settlement Procedures. (a) If on any day any Transferred Purchased Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent on or prior to the earlier of (i) the next Settlement Date or (ii) the occurrence of an Event of Termination all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Dal Tile International Inc)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective or rejected services, any cash discount or other adjustment made by any Seller or any set-off or dispute in respect of any claim by the Obligor thereof against any Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor's bankruptcy), the Seller of such Purchased Receivable shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller reduction or adjustment and shall pay remit to the Collection Agent Purchaser Account on or prior to the next Settlement Date all amounts so deemed to have been received pursuant to this subsection.
(b) Upon discovery by the any Seller or the Purchaser of a breach of any of the representations and warranties made by the any Seller in Section 4.01(j) 4.01 with respect to any Transferred ReceivableReceivable under any Contract, such party shall give prompt written notice thereof to the each other party, as soon as practicable and in any event within three Business Days following such discovery. The Such Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee assign or designee, repurchase all Transferred Receivables under such Transferred Receivable Contract on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance Purchase Price of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the The applicable Seller shall pay remit to the Collection Agent Purchaser Account on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such each Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Security Associates International Inc)
Settlement Procedures. (a) If on any day the --------------------- Outstanding Balance of any Transferred Sold Receivable becomes is reduced, adjusted or cancelled as a result of any cash discount or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Payor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated reaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivable--------- respect of such Payor's bankruptcy), the Seller shall be deemed to have received on such day a Collection of such Transferred Sold Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j4.1(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The discovery and the Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be have received on such day a Collection in respect of such Transferred ReceivableReceivable in full. If the Seller is not the Collection Agent, the The Seller shall pay to the Collection Agent Servicer on or prior to the next Settlement Date the repurchase price required all amounts deemed to be paid have been received pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 2.4 or as otherwise required by law or the underlying Contract, all Collections from an Obligor a Payor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor Payor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor Payor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Healthcare Financial Partners Inc)
Settlement Procedures. (a) If Collection of the Pool Receivables shall be administered by a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it with respect to any Receivable Interest:
(i) set aside on its books and records, which shall be deemed to be held in trust (although the Collection Agent shall not be required to segregate such amounts) for the benefit of the Agent on behalf of the Investors or the Banks that hold such Receivable Interest, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation (or deemed recomputation) of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for such Receivable Interest, set aside and hold in trust (and, at the request of the Agent following the occurrence of an Event of Termination, segregate) for the Investors or the Banks that hold such Receivable Interest the entire remainder of such percentage of Collections; provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter during such Settlement Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) The Collection Agent shall deposit into the Agent's Account, on the last day of each Settlement Period for a Receivable Interest, Collections held for the Investors or the Banks that relate to such Receivable Interest pursuant to Section 2.04(b); provided, however, that if Yield with respect to such Receivable Interest was computed by reference to the Investor Rate during such Settlement Period and no Liquidation Day then exists, Collections held for the Investors pursuant to subsection (i) of Section 2.04(b) shall be deposited to the Agent's Account on the second Business Day after the last date of such Settlement Period instead of such last day.
(d) Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees, second to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors, the Banks or the Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned merchandise or services, or any cash discount, discount for quick payment or other adjustment made by the Seller or the Originator, or any setoff, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any Transferred Receivable becomes (of the representations or warranties contained in whole or in partSection 4.01(h) a Diluted is no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Transferred Pool Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.full;
(biii) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, except as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated provided in subsection (ai) or (bii) of this Section 2.04 2.04(e), or as otherwise required by applicable law or the underlying relevant Contract, all Collections received from an Obligor of any Transferred Receivable Receivables shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Settlement Procedures. (a) If on any day the Outstanding --------------------- Balance of any Transferred Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, rejected, returned or repossessed Equipment or services or any cash discount or other adjustment made by the Originator, or any setoff or dispute between the Originator and an Obligor due to a claim arising out of the same or any other transaction, the Seller Originator shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller Originator is not the Collection Agent, the Seller Originator shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller Originator or the Purchaser Transferee of a breach of any of the representations and warranties made by the Seller Originator in Section 4.01(j4.01(i) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase Originator shall be deemed to have received a Collection in full of such Transferred Receivable Receivable, and all other Receivables relating to the same Contract, and make available to the Transferee on the next succeeding Settlement Date for a repurchase price an amount equal to the Outstanding Balance of such Transferred Receivable. Upon such amount being made available, the Transferee shall retransfer such Transferred Receivables to the Originator. Each repurchase retransfer of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller Originator is not the Collection Agent, the Seller Originator shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price amount required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
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Settlement Procedures. (a) Any Collections of Purchased Receivables received (or deemed to have been received) by the Seller shall be remitted directly to Triple-A by depositing such Collections in the Lock-Box Account within one Business Day of Seller's receipt (or deemed receipt) thereof. On each Payment Date, the Seller shall pay to Triple-A (i) Yield on all outstanding Capital the Fixed Period for which ends on such date plus (ii) the CP Dealer Fees, if any, on any Commercial Paper maturing on such date and raised to fund such Capital.
(b) On each Settlement Date to occur prior to the Designated Termination Date, the Seller shall either:
(i) if Triple-A has consented thereto, sell additional Receivables hereunder in accordance with the procedures and subject to the conditions set forth in Section 2.01 such that, immediately following such Receivables Purchase, the Capital Limit equals or exceeds outstanding Capital, in which event the Collateral Agent shall, subject to the order of priority set forth in Section 6.11(b), remit the Collections so set aside to the Seller in consideration of the purchase price for such Receivables Purchase; or
(ii) if Triple-A has not consented to such additional purchase, out of the Collections so set aside, direct the Collateral Agent to remit to the Administrative Agent, subject to the order of priority set forth in Section 6.11, an amount of such Collections to be applied toward the reduction of outstanding Capital such that, following the application of such Collections to outstanding Capital, the Capital Limit equals or exceeds the outstanding Capital.
(c) On each Payment Date from and after the Designated Termination Date, the Seller shall direct the Collateral Agent to distribute to the Administrative Agent for the benefit of Triple-A, to be applied toward the reduction of outstanding Capital, all Collections so set aside but not to exceed the sum of (i) the Capital allocated to such Fixed Period, (ii) all accrued and unpaid Yield thereon, and (iii) the aggregate of all other amounts owed hereunder by the Seller to Triple-A and/or the Administrative Agent, all as more fully set forth in Section 6.11.
(d) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is either (i) reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise, any defective or rejected services, any cash discount or any other adjustment made or performed by the Seller or any other Person (including, without limitation, those described in whole the definition of "Dilution Factors"), or (ii) reduced or canceled as a result of a setoff in part) respect of any claim by the Obligor thereof against the Seller or any other Person (whether such claim arises out of the same or a Diluted Receivablerelated transaction or an unrelated transaction), the Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction, cancellation or adjustment. If on any day any of the representations or warranties in Section 4.01(g) is no longer true with respect to a Purchased Receivable or if the Seller is not has breached its obligations under Section 5.01(j), then the Seller shall be deemed to have received on such day a Collection Agentof such Purchased Receivable: (x) if such representation, warranty or covenant relates to the non-existence of any Adverse Claims, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts be deemed to have been received pursuant a Collection of such Purchased Receivable in the dollar amount of the Adverse Claims attaching thereto and (y) if such representation or warranty relates to the validity or perfection of the transfer of such Purchased Receivable under this subsection.
(b) Upon discovery by Triple-A Purchase Agreement or the perfection of Triple-A's security interest in any Equipment as against the Obligor thereunder, then the Seller or the Purchaser be deemed to have received a Collection of a breach of any of the representations and warranties made by the Seller such Purchased Receivable in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price an amount equal to the Outstanding Balance thereof. To the extent that any such deemed Collection reduces the Outstanding Balance of such Transferred Purchased Receivable to zero, then, upon the Seller's payment to the Collateral Agent of such deemed Collection, the Collateral Agent shall re-assign to the Seller all of its right, title and interest in and to the relevant Purchased Receivable. Each repurchase of a Transferred , the Contract under which such Purchased Receivable shall include arose and the Related Security with respect relating thereto.
(e) Although the Originator, the Seller and Triple-A agree that the Originator shall have no right to so terminate, reject or not assume a Contract, if the Originator in its capacity as Servicer (or its successor in interest, including a trustee appointed under the Bankruptcy Code) terminates, rejects or does not assume a Contract, in whole or in part, prior to the expiration of the original term of such Transferred Receivable. The proceeds Contract, whether such rejection, termination or non-assumption is made pursuant to an equitable cause, statute, regulation, judicial proceeding or other applicable law (including, without limitation, Section 365 of any such repurchase the Bankruptcy Code), then (i) the Seller shall be deemed to be have received Collections with respect to Purchased Receivables arising under such Contract in an amount equal to (A) in the event of a Collection in respect prepayment or termination consented to by the Originator at the Obligor's request, the excess, if any, of the Termination Amount over all amounts paid by the Obligor on account of such Transferred Receivabletermination or (B) in the event of any other rejection or non-assumption, the amount, of the Outstanding Balance thereof that has not been, or may not be paid as a result of such rejection, termination or non-assumption. If Upon the Seller's payment of any such deemed Collections described in this Section 2.05(e), the Collateral Agent shall re-assign to the Seller is not all of its right, title and interest in and to the Collection Agentrelevant Purchased Receivable or Purchased Receivables, the Seller shall pay to Contracts under which such Purchased Receivable(s) arose and the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsectionRelated Security relating thereto.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective, rejected or returned merchandise or services or any cash discount, discount for quick payment or other adjustment made by any Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against any Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in whole or in part) a Diluted Receivablerespect of such Obligor’s bankruptcy), the such Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction or adjustment. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the such Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other partyparties, as soon as practicable and in any event within three Business Days following such discovery. The applicable Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Lexmark International Inc /Ky/)
Settlement Procedures. (a) If on any day the Outstanding --------------------- Balance of any Transferred Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, rejected, returned or repossessed Equipment or services or any cash discount or other adjustment made by the Originator, or any setoff or dispute between the Originator and an Obligor due to a claim arising out of the same or any other transaction, the Seller Originator shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller Originator is not the Collection Agent, the Seller Originator shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller Originator or the Purchaser Transferee or the Agent of a breach of any of the representations and warranties made or deemed made by the Seller Originator in Section 4.01(j4.01(i) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase Originator shall be deemed to have received a Collection in full of such Transferred Receivable Receivable, and all other Receivables relating to the same Contract, and make available to the Transferee on the next succeeding Settlement Date for a repurchase price an amount equal to the Outstanding Balance of such Transferred Receivable. Upon such amount being made available, the Transferee shall retransfer such Transferred Receivables to the Originator. Each repurchase retransfer of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller Originator is not the Collection Agent, the Seller Originator shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price amount required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which originated such Transferred Receivable shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the any Seller or the Purchaser of a breach of any of the representations and warranties made by the a Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The applicable Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase (or purchase, in the case of a Contributed Receivable) such Transferred Receivable on the next succeeding Settlement Date for a repurchase (or purchase, in the case of a Contributed Receivable) price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase or purchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase or purchase, as the case may be, shall be deemed to be a Collection in respect of such Transferred Receivable. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase (or purchase, in the case of a Contributed Receivable) price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Settlement Procedures. (a) If on any The Servicer shall cause all Collections received by it or deposited in the Lock-Box Accounts to be transferred in same day any Transferred Receivable becomes (funds to the Collection Account. The Servicer shall segregate, set aside and hold in whole or trust for the Purchaser, in part) a Diluted Receivablethe Collection Account, the Seller shall be deemed to have percentage interest representing the Purchased Interest in Collections of Purchased Receivables received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsectionday.
(b) Upon discovery On each Settlement Date, the amounts set aside in the Collection Account in accordance with CLAUSE (a) above shall be withdrawn from the Collection Account to be applied in the following order of priority;
(i) First, (if the Servicer is a party other than Superior, an Originator or an Affiliate thereof) to pay any accrued and unpaid Servicer Fee which is then due and payable, or to be retained in the Collection Account to the extent of any daily accrued and unpaid amounts of such Servicer Fee which are not then due and payable, until the next relevant payment date therefor, and not to be applied to any of the following items;
(ii) Second, to pay accrued and unpaid Yield which is then due and payable, or to be retained in the Collection Account to the extent of any accrued and unpaid amounts of such Yield which are not then due and payable, and not to be applied to any of the following items;
(iii) Third, (to the extent that the payment of such Liquidity Fee does not cause a Coverage Shortfall Event to occur) to pay accrued and unpaid Liquidity Fee which is then due and payable, or to be retained in the Collection Account to the extent of any accrued and unpaid amounts of such Liquidity Fee which are not then due and payable, and not to be applied to any of the following items;
(iv) Fourth, (to the extent that the payment of such Supplemental Enhancement Fee does not cause a Coverage Shortfall Event to occur) to pay accrued and unpaid Supplemental Enhancement Fee which is then due and payable, or to be retained in the Collection Account to the extent of any accrued and unpaid amounts of such Supplemental Enhancement Fee which are not then due and payable, and not to be applied to any of the following items;
(v) Fifth, (to the extent that the payment of such Program Fee does not cause a Coverage Shortfall Event to occur) to pay accrued and unpaid Program Fee which is then due and payable, or to be retained in the Collection Account to the extent of any accrued and unpaid amounts of such Program Fee which are not then due and payable, and not to be applied to any of the following items;
(vi) Sixth, (to the extent that the payment of such Administrative Fee does not cause a Coverage Shortfall Event to occur) to pay any Administrative Fee which is then due and payable, or to be retained in the Collection Account to the extent of the Administrative Fee payable in respect of the next succeeding annual period, until the next relevant payment date therefor, and not to be applied to any of the following items;
(vii) Seventh, to pay all Capital then outstanding relating to any Yield which is then due and payable, or to be retained in the Collection Account to the extent of any Capital remaining outstanding;
(viii) Eighth, to pay the portion of any other accrued and unpaid obligations which have not been paid pursuant to clauses (i) through (vi) above and which are then due and payable by the Seller to the Purchaser or the Purchaser of a breach of Deal Agent under this Agreement or any of the representations and warranties made by other Transaction Documents, or to be retained in the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof Collection Account to the other partyextent of any accrued and unpaid amounts of such obligations which are not then due and payable, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on until the next succeeding Settlement Date for a repurchase price equal relevant payment date therefor, and not to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order any of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.following items;
Appears in 1 contract
Samples: Receivables Purchase Agreement (Superior National Insurance Group Inc)
Settlement Procedures. (a) If on any day the Outstanding Balance of any Transferred Purchased Receivable becomes is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount, discount for quick payment or other adjustment made by the Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against the Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations on account of the insolvency, bankruptcy, or financial inability to pay of the applicable Obligor, whether pursuant to an adjustment of the payment amount for such Receivable in whole accordance with Section 6.02(c) or in part) a Diluted Receivableotherwise), the Seller shall be deemed to have received on such day a Collection of such Transferred Purchased Receivable in the amount of such Diluted Receivablereduction or adjustment. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable. If the Seller is not the Collection Agent, the Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Ck Witco Corp)
Settlement Procedures. (a) If on any day any Transferred Receivable Purchased Asset becomes (in whole or in part) a Diluted ReceivableReceivable or a Diluted Participation Interest (as the case may be), the Seller which originated such Purchased Asset shall be deemed to have received on such day a Collection of such Transferred Receivable Purchased Asset in the amount of such Diluted ReceivableReceivable or Diluted Participation Interest (as the case may be). If the such Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection.
(b) Upon discovery by the a Seller or the Purchaser of a breach of any of the representations and warranties made by the any Seller in Section 4.01(j) with respect to any Transferred ReceivablePurchased Asset, such party shall give prompt written notice thereof to the other partyPurchaser, the Collection Agent, and the applicable Seller, as soon as practicable and in any event within three Business Days following such discovery. The applicable Seller shall, upon not less than two Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable Purchased Asset on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred ReceivablePurchased Asset. Each repurchase of a Transferred Receivable Purchased Asset shall include the Related Security with respect to such Transferred ReceivablePurchased Asset. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred ReceivablePurchased Asset. If the applicable Seller is not the Collection Agent, the such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Purchased Receivable or Participated Receivable shall be applied to the Transferred Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables.
Appears in 1 contract
Settlement Procedures. (a) If on any day any Transferred Receivable becomes (in whole or in part) a Diluted Receivable, Collection of the Seller Pool Receivables shall be deemed to have received on such day administered by a Collection of such Transferred Receivable in the amount of such Diluted Receivable. If the Seller is not the Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall pay provide to the Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Liquidation Day and current computations of each Receivable Interest. Table of Contents
(b) The Collection Agent shall, on each day on which Collections of Pool Receivables are received by it (provided that if the notices of effectiveness attached to the Deposit Account Agreements have been delivered to the Deposit Banks pursuant to Section 6.03(a), the Collection Agent shall not be permitted to access or withdraw funds in the Deposit Accounts, and the Program Agent shall direct the Deposit Banks to remit funds in accordance with the following clauses):
(i) with respect to each Receivable Interest, set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections represented by such Receivable Interest, an amount equal to the Yield, Fees and Collection Agent Fee (and, during the Term Period, an amount equal to the Excess Interest in respect of all Cash Secured Advances) accrued through such day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day is not a Liquidation Day for such Receivable Interest, reinvest with the Seller on behalf of the Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and/or the Banks that hold such Receivable Interests and for the Investor Agents (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the next occurring Settlement Date all (Capital) the conditions set forth in Section 3.02 are satisfied or waived by the Program Agent and the Investor Agents, such previously set aside amounts deemed shall, to have been received the extent representing a return of Capital, be reinvested in accordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; provided, further, if such day is a Liquidation Day for one or more Receivable Interests solely by reason of the designation by the Investor Agent for an Investor of a Termination Date for a Receivable Interest pursuant to clause (i)(a) of the definition of Termination Date (and no other event or condition qualifying as a Liquidation Day has occurred), then the Collection Agent shall periodically notify such Investor Agent of the amounts set aside and held in trust pursuant to this subsection.
clause (biii) Upon discovery by on account of such Receivable Interests (which notice shall be given at such times as the Collection Agent and such Investor Agent may agree, but no less frequently than weekly), the Banks in such Investor Agent’s Group shall make periodic purchases of the Receivable Interests from the Seller or the Purchaser of a breach of any of the representations and warranties made by the Seller in Section 4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three Business Days following such discovery. The Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price having initial Capital equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to be a Collection amounts so set aside and held in respect of such Transferred Receivable. If the Seller is not the Collection Agenttrust, the Seller hereby directs such Banks to pay the proceeds of such purchases to the applicable Investor Agent’s Account, for application to the reduction of the outstanding Capital on such Receivable Interests of such Investor, and the amounts so set aside and held in trust shall pay to be paid by the Collection Agent on or prior to the next Settlement Date Seller on account of the repurchase purchase price of the Receivable Interests so purchased by such Banks; and Table of Contents
(iv) during such times as amounts are required to be paid reinvested in accordance with the foregoing subsection (ii) or the provisos to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to this subsectionsubsection (i) above.
(c) Except as stated On each Settlement Date (Yield and Fees), the Collection Agent shall deposit into the Investor Agent’s Account of each Investor Agent Collections held for such Investor Agent and/or the Investors or the Banks in subsection its Group pursuant to Section 2.04(b) that relate to the Receivable Interests owned by such Investors and Banks. In addition, during the Revolving Period, on each Settlement Date (aCapital) following delivery of a Seller Report which shows that the Percentage Factor on the last day of the applicable reporting period was greater than the Maximum Percentage Factor, and on each Business Day thereafter until such condition no longer exists, the Collection Agent shall deposit into the Investor Agent’s Account of each Investor Agent Collections set aside for such Investor Agent and/or the Investors or the Banks in its Group pursuant to clause (biii) of Section 2.04(b); provided that the aggregate amount deposited pursuant to this sentence with respect to any Seller Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the Percentage Factor is equal to the Maximum Percentage Factor. Notwithstanding the preceding sentence, at any time during the Revolving Period when a Non-Pro-Rata Allocation exists and the Collection Agent is depositing Collections to the Investor Agent’s Accounts which are to be used to reduce Capital, the Collection Agent shall remit such Collections first to the Investor Agent for the CAFCO Group, to the extent necessary to eliminate such Non-Pro-Rata Allocation, and then ratably to the Investor Agents, in proportion to the Capital of Receivable Interests (excluding L/C Receivable Interests) held by the Investor and the Banks in each Investor Agent’s Group. On each Settlement Date (Capital) on which Collections are held for the Investors or the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the two preceding sentences of this Section 2.04 or as otherwise required by law 2.04(c), the Collection Agent shall deposit into the Investor Agent’s Account of each Investor Agent Collections held for such Investor Agent and/or the Investors or the underlying ContractBanks in its Group pursuant to Section 2.04(b) that relate to the Receivable Interests owned by such Investors and Banks. Table of Contents
(d) Upon receipt of funds deposited into the Investor Agent’s Account, the relevant Investor Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors, the Banks and, during the Term Period, the Term-Out Banks in its Group that hold the relevant Receivable Interest in the ratable payment in full of all Collections from an Obligor accrued Yield and Excess Interest in respect of all Cash Secured Advances (pursuant to the last sentence of Section 2.15) and to such Investor Agent as payment in full of all Fees, and then to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors, the Banks and the Term-Out Banks in its Group;
(ii) if such distribution occurs on a Liquidation Day, to the extent such Investor Agent is then holding funds deposited pursuant to the second sentence of Section 2.04(c), to the Investors or the Banks in its Group that hold the relevant Receivable Interest in reduction of Capital and then in accordance with clause (iii) below, provided, that if any Transferred L/C Receivable Interests are then outstanding and held by any Bank in such Group, such funds shall be applied first to the Transferred Receivables reduction of Capital of all Receivable Interests of such Obligor Group other than L/C Receivable Interests for which no unpaid Reimbursement Obligation is outstanding, and if the Capital of all such Receivable Interests shall be reduced to zero, any additional funds shall be deposited to the L/C Collateral Account, to cash collateralize the Seller’s contingent reimbursement obligations with respect to Letters of Credit;
(iii) if such distribution occurs on a Liquidation Day, after any payments required in accordance with clause (ii) above, first to such Investor Agent in payment of any amounts owed by the Seller to such Investor Agent (or, in the order case of CNAI, the Program Agent) pursuant to Section 11.04(a) in connection with out-of-pocket costs and expenses incurred by such Investor Agent (or, in the case of CNAI, the Program Agent), second to the Collection Agent (if the Collection Agent is not the Seller or an Affiliate of the age Seller) in payment in full of all accrued Collection Agent Fee, third to the Investors, the Banks and/or Term-Out Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in the ratable payment in full of all accrued Yield and Excess Interest in respect of all Cash Secured Advances and accrued Fees and Liquidation Fee, fourth to such Investors and/or Banks in reduction to zero of all Capital of all Receivable Interests of such ReceivablesGroup other than L/C Receivable Interests for which no unpaid Reimbursement Obligation is outstanding, starting fifth to the L/C Collateral Account, to cash collateralize the Seller’s contingent reimbursement obligations with respect to Letters of Credit, until the oldest amount in the L/C Collateral Account equals the aggregate outstanding Capital of all L/C Receivable Interests, sixth to the Term-Out Banks in reduction to zero of the principal amount of all Cash Secured Advances remaining after application of the Term-Out Bank Collateral in accordance with Section 2.17(d), seventh to such ReceivableInvestors, unless Banks or such Obligor designates its Investor Agent in payment for application of any other amounts owed by the Seller hereunder or any other Transaction Document which have not been paid pursuant to specific Receivablesclauses first through sixth above, and eighth to the Collection Agent (if the Collection Agent is the Seller or an Affiliate of the Seller) in payment in full of all accrued Collection Agent Fee.
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Settlement Procedures. (a) If on any day the outstanding balance of any Transferred Receivable becomes (in whole is reduced or in part) adjusted as a Diluted Receivableresult of any defective, the rejected or returned merchandise or services or any cash discount, discount for quick payment or other adjustment by a Seller or any set-off, such Seller shall be deemed to have received on such day a Collection of such Transferred Receivable in the amount of such Diluted Receivablereduction or adjustment (each, an "Originator Deemed Collection"). If the Seller is not the Collection Agent, the Such Seller shall pay to the Collection Agent on or prior to Purchaser, in the next Settlement Date manner provided in Section 2.03(a), within three (3) Business Days, all amounts Originator Deemed Collections deemed to have been received pursuant to this subsection.
(b) Upon discovery by any Seller (the Seller "Affected Seller") or the Purchaser that at the time of purchase, a breach of any of the representations and warranties made Transferred Relevant Receivable sold by the Affected Seller in Section 4.01(j) with respect to any Transferred hereunder was not an Eligible Receivable, such party shall give prompt written notice thereof to the other party, as soon as practicable and in any event within three (3) Business Days following such discovery. The Affected Seller shall, upon not less than two (2) Business Days’ ' notice from the Purchaser or its assignee or designee, repurchase purchase such Transferred Relevant Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Relevant Receivable or replace such Transferred Relevant Receivable with an equivalent Eligible Receivable, each to occur on the next succeeding Applicable Daily Settlement Date. If such Transferred Relevant Receivable is replaced, with respect to any portion of the outstanding principal balance of the replacement Receivable in excess of the outstanding principal balance of the Transferred Relevant Receivable being replaced, the Purchaser shall pay to the Affected Seller an amount equal to such portion. Each repurchase of a Transferred Relevant Receivable shall include repurchase of the Related Security with respect to such Transferred Relevant Receivable. The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Relevant Receivable. If the Seller is not the Collection Agent, the The Affected Seller shall pay to the Collection Agent Purchaser on or prior to the next Applicable Daily Settlement Date the repurchase price required to be paid pursuant to this subsectionsubsection as provided in Section 2.03(a).
(c) Except as stated in subsection (a), (b) or (bc) of this Section 2.04 or as otherwise required by law or the underlying Contract, all Collections from an Obligor of any Transferred Receivable shall be applied to the Transferred Receivables of such Obligor designated by such Obligor or, if no Receivables are so designated, in the order of the age of such Receivables, starting accordance with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesCredit and Collection Policy.
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