Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date: (i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer); (ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party; (iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 2 contracts
Samples: Loan and Security Agreement (Hill-Rom Holdings, Inc.), Loan and Security Agreement (Hill-Rom Holdings, Inc.)
Settlement Procedures. (a) The Servicer [Reserved].
(b) [Reserved].
(c) No Lender shall set aside be responsible for any default by any other Lender in the other Lender’s obligation to make Term Loan hereunder nor shall the Term Loan Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make the Term Loan hereunder.
(d) Agent may assume that each Lender will make available to Agent such Lender’s Pro Rata Share of the Term Loan and hold Agent may, in trust its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on the Secured Parties Closing Date. If Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to Agent by such Lender, Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the 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 (or, if so requested as published by the Administrative 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) 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. During the period in which such Lender has not paid such corresponding amount to Agent, segregate notwithstanding anything to the contrary contained in this Agreement or any of the other Financing Agreements, the amount so advanced by Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a separate part of the Term Loan made by Agent for its own account. Upon any such failure by a Lender to pay Agent, Agent shall promptly thereafter notify Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to Agent for its own account designated by the within five (5) Business Days of Administrative AgentBorrower’s receipt of such notice, which shall be an constitute a payment on account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs of Obligations.
(e) Nothing in its sole discretion), for application this Section or elsewhere in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer this Agreement or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date other Financing Agreements shall be payable deemed to require Agent to advance funds on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount behalf of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, to relieve any Lender from its obligation to fulfill its Term Loan Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as set forth a result of any default by any Lender hereunder in clause (x), (y) or (z) below, as applicable:fulfilling its Term Loan Commitment.
Appears in 2 contracts
Samples: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Settlement Procedures. (a) The Servicer On each applicable Settlement Date as set forth below prior to the Facility Termination Date, all Collections and any proceeds of fundings under the Receivables Sale Agreement deposited into the Collection Account during the preceding Settlement Period shall set aside and hold in trust for be applied where applicable by the benefit of the Secured Parties Administrator (or, if so requested the Agent is then in control of any Collections, by the Administrative Agent) in the following order:
(i) on the last Settlement Date of each month, segregate in a separate account designated by to the Administrative AgentServicer, 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 amount equal to the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied Fee and all other amounts due and payable on such date;
(ii) on the last Settlement Date of each month, the Servicer may release to the Borrower from such Collections Administrator, an amount equal to the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower Liability Management Fee due and payable on such date in accordance with the terms of the Purchase and Sale Agreement date;
(each such release, a “Release”). On iii) on each Settlement Date, to the Servicer (orFunding Interest Holders, following its assumption of control of the Lock-Box Accountspro rata, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge all Funding Charges and agree that no accrued Discount due and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such date;
(iv) on the last Settlement Date of each month, to the Funding Interest Holders, Funding Interest Agents and instead the Agent, pro rata, all fees due and payable on such date;
(v) on each Settlement Date, to the Agent and the Funding Interest Agents, pro rata, any other amounts due and payable to the Agent and the Funding Interest Agents under the Transaction Documents;
(vi) on each Settlement Date, to the Funding Interest Holders, pro rata, all other amounts due and payable to the Funding Interest Holders under the Transaction Documents (including the principal amount of any Investment due and owing);
(vii) on each Settlement Date, to the Purchaser, all Incidental Expenses then due and payable;
(viii) on each Settlement Date, to the Seller, the Cash Purchase Prices due for a Reinvestment Purchase on such date;
(ix) on each Settlement Date, to any other Person (other than the Purchaser, the Seller, the Administrator or the Servicer) to whom any amounts are owed under the Transaction Documents until all such amounts have been paid in full;
(x) on each Settlement Date, to the Seller, any outstanding Deferred Purchase Prices;
(xi) on each Settlement Date, to the Servicer, any Additional Servicing Fee due and payable on such date; and
(xii) on each Settlement Date, any remaining amounts, to the Purchaser.
(b) On each day during any Interim Liquidation and on and after the Facility Termination Date, all Collections received on such day shall be payable on the following Settlement Dateallocated as follows:
(i) first, to the Servicer for until all amounts then due and payable to the payment of Servicer under this Agreement and the accrued Servicing Fees payable for the immediately preceding Interest Period Transaction Documents have been paid in full (plus, if applicable, the amount of Servicing Fees payable except for any prior Interest Period to the extent such amount has not been distributed to the ServicerAdditional Servicing Fee then due and owing);
(ii) second, to each Lender and other Credit Party (ratablythe Administrator, based on the amount any Liability Management Fee then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Partypayable;
(iii) third, as set forth to the Agent until all reasonable costs of collection, administration and enforcement of this Agreement owed to the Agent for its own account have been paid in clause full;
(x)iv) fourth, to the Funding Interest Holders, pro rata, until all Investments, Funding Charges, if any, and Discounts owed but not already paid to such Funding Interest Holders have been paid in full;
(yv) fifth, to the Purchaser, all Incidental Expenses then due and payable;
(vi) sixth, to any other Person (other than the Purchaser, the Seller, the Administrator or the Servicer) to whom any amounts are owed under the Transaction Documents until all such amounts have been paid in full;
(zvii) belowseventh, as applicable:to the Seller, the outstanding Deferred Purchase Prices;
(viii) eighth, to the Servicer, any Additional Servicing Fee; and
(ix) ninth, any remaining amounts to the Purchaser.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Alliance One International, Inc.), Receivables Purchase Agreement (Alliance One International, Inc.)
Settlement Procedures. On each Payment Date, no later than 11:00 a.m. (New York City time) the Paying Agent shall, from the Collection Account, to the extent of available funds (such amounts being the “Available Collections”) disburse the following amounts in the following order of priority:
(a) The Servicer shall set aside During the Revolving Period, and hold in trust each case unless otherwise specified below, applying Available Collections:
(i) First, ratably, (A) to the Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the benefit of payment thereof in an aggregate amount not to exceed the Secured Parties Bank Fees and Expenses and the Administrative Expense Cap, and (or, if so requested by B) to the Administrative Agent, segregate in a separate account designated by the an amount equal to any accrued and unpaid Administrative AgentAgent Fee and Administrative Expenses;
(ii) Second, which shall be an account maintained and controlled by to the Administrative Agent unless for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Unused Fee and Minimum Earnings Fee for such Payment Date;
(iii) Third, first, to the Administrative Agent otherwise instructs in its sole discretion)for payment to each Managing Agent, for application in accordance with on behalf of the priority related Lenders, an amount equal to the excess, if any, of payments set forth belowAdvances Outstanding over the Maximum Availability, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Accountpro rata; provided, however, that so long as to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(iv) Fourth, to the Administrative Agent for payment to each Managing Agent, on behalf of the conditions precedent set forth related Lenders, in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount of Increased Costs, and/or Taxes (if any);
(v) necessary Fifth, to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) shallSixth, distribute such Collections in to the following order Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(vii) Seventh, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement DateAvailable Collections:
(i) firstFirst, ratably, (A) to the Servicer Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount not to exceed the Bank Fees and Expenses and the Administrative Expense Cap, provided, that if the Advances have been accelerated following the occurrence and during the continuance of an Event of Default, and the sale of the accrued Servicing Fees payable for the immediately preceding Interest Period Collateral has commenced in connection therewith, such limitations specified therein shall not be given any effect, and (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period B) to the extent such Administrative Agent, in an amount has not been distributed equal to the Servicer)any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(ii) secondSecond, to the Administrative Agent for payment to each Lender and other Credit Party (ratablyManaging Agent, based on behalf of the related Lenders, in an amount then due and owing), all equal to any accrued and unpaid Interest, Fees and Breakage Fees due to Interest for such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPayment Date;
(iii) thirdThird, as set forth to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in clause an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(xiv) Fourth, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs and/or Taxes (if any);
(v) Fifth, to the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(yvi) Sixth, to the Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(zvii) belowSeventh, as applicable:all remaining amounts to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Runway Growth Credit Fund Inc.), Credit Agreement (Runway Growth Credit Fund Inc.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (or, following its assumption of control of Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on amounts on deposit in the Lock-Box Accounts, Collection Account from the Administrative Agent) shall, Collection Account and allocate and distribute such Collections amounts to the applicable Person in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) firstFIRST, to the Servicer Administrator, the Administrator's Fee plus, on and after the date of the exercise of an Optional Purchase by the Borrower with respect to any Securitization Transaction so long as the Administrator is no longer receiving a servicing fee pursuant to the underlying Securitization Documents, an amount equal to the product of (A) 6.00% and (B) the total "Collections" (as such term is defined in the related Securitization Documents) in respect of such Securitization Transaction for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer)related Collection Period;
(ii) secondSECOND, to each Lender and other Credit Party (ratablythe Deal Agent for the account of the Lenders, based on an amount equal to the amount then due and owing), all sum of any accrued and unpaid Interest, Fees (A) Yield and Breakage Fees Costs, (B) all Program Fees, and (C) all Facility Fees, due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of Payment Date and any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for unpaid from any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPayment Date;
(iii) thirdTHIRD, as set forth in clause (x)to the Reserve Account, (yA) an amount equal to any outstanding Reserve Advances and (B) the amount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iv) FOURTH, to the Deal Agent for the account of the Lenders, pro rata, an amount necessary to reduce such Lender's Capital to zero;
(v) FIFTH, to the Deal Agent for the account of the Lenders, an amount equal to Increased Costs, any Additional Amounts and Indemnified Amounts due in respect of such Payment Date and unpaid from any prior Payment Date; and to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids until paid in full; and
(vi) SIXTH, to the Borrower any remaining amounts.
(b) [Reserved.]
(i) If on any Payment Date the amounts allocable pursuant to Sections 2.7(a)(i) and (ii) are insufficient to cover all amounts due thereunder on such Payment Date, the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a "Reserve Advance") and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Administrator or (z) belowto the Deal Agent for payment to the Lenders, as applicable:.
(ii) If on any Payment Date during the Amortization Period, the amount paid pursuant to Section 2.7(a)(iii) is insufficient to reduce Aggregate Unpaids to zero, the Deal Agent, in its sole discretion, may direct the Collateral Agent to withdraw any or all of the amount on deposit in the Reserve Account, and pay such amount to the Deal Agent, for payment to the Lenders.
Appears in 1 contract
Samples: Certificate Funding Agreement (Credit Acceptance Corporation)
Settlement Procedures. (a) The Servicer On each Payment Date, the Borrower (or at all times after the occurrence and continuance of a Termination Event, the Collateral Agent) shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date;
(ii) Second, [Reserved];
(iii) Third, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to Xxxxx FargoComputershare up to $17,000, monthly;
(iv) Fourth, (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, that each 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;
(v) Fifth, to the Lenders, ratably, an amount equal to the sum of the parties hereto hereby acknowledge and agree that no any accrued and unpaid Interest(A) Interest and Breakage Costs, Fees or Servicing Fees owing as (B) Program Fee, and (C) Unused Fee due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(ivi) firstSixth, during the Revolving Period, to the Servicer for Lenders, ratably (based on the payment outstanding principal amount of the accrued Servicing Fees payable Revolving Loans of each Lender), an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) Seventh, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) Eighth, during the immediately preceding Interest Period Amortization Period, to the Lenders, ratably (plus, if applicablebased on the outstanding principal amount of the Revolving Loans of each Lender), the Additional Principal Payment Amount, until the Aggregate Loan Amount has been reduced to zero;
(ix) Ninth, ratably to the Lenders and the Backup Servicer, an amount equal to 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 Third above) due in respect of Servicing Fees payable for such Payment Date and unpaid from any prior Interest Period Payment Date;
(x) Tenth, to the extent such Reserve Account, (A) an amount has not been distributed equal to any outstanding Reserve Advances and (B) the Serviceramount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iixi) secondEleventh, to each Lender and other Credit Party (ratablythe Backup Servicer, based on if it has become the amount then Successor Servicer, any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause Fourth above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) Twelfth, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) Thirteenth, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as a payment in reduction of the portion of the Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, plusthe Borrower (or the Collateral Agent, if as applicable, ) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent such amount has not been distributed to such Lender Collection Account. The Borrower (or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) belowthe Collateral Agent, as applicable:) shall pay such amount ratably to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (orshall instruct the Account Bank to pay, to the following its assumption Persons, from the Collection Account to the extent of control of Available Funds the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections following amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in the related Monthly Report: (i) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances, to the extent not previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (other than Hedge Breakage Costs), and (B) to eachthe Administrative Agent (based on amounts due to 58 149194398v7 the members of each Lender Group pursuant to this subclause), for further payment to each related Lender, an amount equal to the sum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any related Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to eachthe Administrative Agent (based on Lender Percentage) for further payment to each related Lender, the Monthly Principal Payment Amount; (vi) Sixth, if the Termination Date has not occurred but a Partial Expiration Event has occurred, pro rata to eachthe Administrative Agent for a Lender Group that includes a Non-Extending Lender (based on the Loans Outstanding to each such Non-Extending Lender) for further payment to each related Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender's Invested Percentage as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, pro rata to eachto the Administrative Agent (based on the amount of the Subordinated Monthly Interest Payment Amount due to members of the related Lender Group), for further payment to each related Lender, the Subordinated Monthly Interest Payment Amount; (viii) Eighth, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), such Subordinated Hedge Breakage Costs; (ix) Ninth, pro rata to eachto the Administrative Agent (based on such amounts due) for further payment to the relatedeach Lender or the related Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the Lenders and Indemnified Parties under this Agreement; (x)) Tenth, pro rata (ybased on such amounts due) to the Backup Servicer and the Successor Servicer, any fees, expenses (including Transition Expenses) and indemnities not paid pursuant to clauses (ii) or (z) belowiii), above, as applicable:; and (xi) Eleventh, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated approved 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 Borrower or received in any Lock-Box or Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase Sale Agreements or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes and Sale Agreement the Pre-Existing Subordinated Note owed to Volt (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender Lender, Hedge Counterparty and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees, Breakage Fees and Breakage Fees any fixed payments owing due pursuant to the terms of a Hedge Agreement due to such Lender Lender, Hedge Counterparty and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees, Breakage Fees and Breakage Fees any fixed payments owing due pursuant to the terms of a Hedge Agreement (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender Lender, Hedge Counterparty or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Samples: Receivables Financing Agreement (Volt Information Sciences, Inc.)
Settlement Procedures. (a) The Servicer On each Payment Date and on the Maturity Date, the Collateral Agent shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 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 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, that each 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 parties hereto hereby acknowledge and agree that no Lender, an amount equal to the sum of any accrued and unpaid Interest(A) Interest and Breakage Costs, Fees or Servicing Fees owing as (B) the Program Fee, and (C) the Facility Fee, Increased Costs and any Additional Amounts due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(iv) firstFIFTH, during the Revolving Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable 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 immediately preceding Interest Period (plus, if applicableaccount 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 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 Servicing Fees payable for such Payment Date and unpaid from any prior Interest Period Payment Date;
(viii) EIGHTH, to the extent such Reserve Account, (A) an amount has not been distributed equal to any outstanding Reserve Advances and (B) the Serviceramount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iiix) secondNINTH, to each Lender the Backup Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause (iii) above and any such Servicing Fee unpaid from any prior Payment Date;
(x) TENTH, to the Deal Agent for the account of any other Credit Party applicable Person, all remaining amounts up to all Aggregate Unpaids (ratablyduring the Revolving Period, based other than Capital) until paid in full;
(xi) ELEVENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days' prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount then due to the 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 Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by a Responsible Officer of the Servicer has certified to the Collateral Agent and owingthe Deal Agent in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (x), . Any such prepayment of principal shall include all accrued and unpaid Interest, Fees Interest and any applicable Breakage Fees Costs relating thereto.
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(iv) and (v) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect lesser of such payments), plus, if applicable, shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long Except as each of the conditions precedent set forth in Section 6.03 are satisfied 2.08(b), on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement DateDate Collections on Assigned Receivables (including Policy Proceeds on deposit in the Collection Accounts), shall be withdrawn from the Collection Accounts and applied by Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that (and in no other order without the Agent’s prior written consent until the amounts due and payable in each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
category are fully paid): (i) first, to the Servicer for Payment Account, an amount equal to the payment of interest accrued on Advances through and including the accrued preceding Business Day; (ii) second, any Servicing Fees payable for accrued through such Settlement Date shall be paid to Servicer; (iii) third, an amount equal to the immediately preceding Interest Period Borrowing Base Deficit (plus, if applicable, calculated before giving effect to any Receivables that became Assigned Receivables on such Settlement Date and the amount of Servicing Fees payable for any prior Interest Period the Advance (if any) being made on such Settlement Date) shall be paid to the extent Payment Account and applied by the Agent to reduce the outstanding principal amount of the respective Advances; (iv) fourth, to Borrower, any remaining funds. Notwithstanding clause third of the preceding sentence, Collections on deposit in the Collection Account on any Settlement Date that are payable pursuant to clause third may be netted and set-off by the Servicer against the Advance, if any, to be made on such Settlement Date. Any amounts applied by Servicer pursuant to the preceding sentence to satisfy Lenders’ obligation to make new Advances on any Settlement Date shall be deemed to have been paid to Lenders in reduction on the outstanding principal amount has of the Advances on such Settlement Date.
(b) At all times after the Program Termination Date, on each Settlement Date all Collections on Assigned Receivables (including all Policy Proceeds on deposit in the Collection Accounts) shall be withdrawn from the Collection Account and applied by Servicer in the following order (and in no other order without the Agent’s prior written consent until all amounts due and payable within each category are fully paid): (i) first, to the Agent to pay the amount of any fees and expenses (including but not limited to fees and expenses of its counsel) that have not been distributed paid or reimbursed to the Servicer);
Agent or the Lenders that are payable by Borrower in accordance with the terms of this Agreement or the other Program Documents, together with any interest accrued thereon; (ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable Agent for any prior Interest Period indemnities owed by Borrower to the extent such amount has not been distributed to such Lender Agent or Credit Party;
the Lenders under this Agreement or the other Program Documents; (iii) third, as set forth to the Agent in clause payment of accrued interest accrued in respect of the Aggregate Advances through and including the preceding Business Day; (x)iv) fourth, to the Agent in payment of the principal of the Aggregate Advances; and (yv) or (z) belowfifth, as applicable:to Borrower.
Appears in 1 contract
Settlement Procedures. (a) The Servicer On each date that any Obligations remain outstanding (commencing on the date the Administrative Agent’s Account and the Cure Account have been established, which accounts shall set aside be established no later than the second Business Day after the date of this Agreement) on which (x) any amount of Collections are to be deposited into the Borrower’s Account (as defined in the Receivables Financing Agreement) (or otherwise to be paid to or on behalf of the Borrower) pursuant to the Receivables Financing Agreement or are otherwise in the Borrower’s Account (as defined in the Receivables Financing Agreement) or in the possession or control of the Borrower or (y) after the RFA Termination Date, any amount of Collections are received by or on behalf of the Borrower or the Collection Agent and hold in trust not otherwise promptly applied to the payment of Obligations, each of the Borrower and the Collection Agent shall (and the Borrower hereby authorizes and directs the Collection Agent to) cause such amount to be distributed as follows:
(A) If on such date no Event of Default is continuing:
(i) First, if such date is not the Maturity Date, to be deposited into the Administrative Agent’s Account for the benefit of the Secured Parties Beneficiaries and the Collection Agent, an amount equal to the sum of the accrued and unpaid interest, Fees and Collection Agent Fees owing hereunder through such date and any unpaid expenses of, or other amounts (orother than Fees) owing to, if so requested by the Administrative Agent incurred or owing under any Transaction Document (such expenses and amounts owing to the Administrative Agent, segregate the “Administrative Agent Amounts”), in each case, to the extent the amount then on deposit in the Administrative Agent’s Account in respect thereof is less than the sum of the accrued and unpaid interest, Fees and Collection Agent Fees owing hereunder as of such date and the Administrative Agent Amounts;
(ii) Second, if such date is not the Maturity Date and during any Cure Period, to be deposited into the Cure Account, an amount equal to the amount then required to be deposited into the Cure Account by the Borrower pursuant to Section 2.08(b), to be held by the Administrative Agent for the benefit of the Beneficiaries and distributed in accordance with Section 2.08(b);
(iii) Third, if such date is the Maturity Date, to be deposited into the Administrative Agent’s Account for the benefit of the Beneficiaries and the Collection Agent, an amount equal to all unpaid principal and interest on the Loans and all other unpaid Obligations and unpaid Collection Agent Fees, to the extent such amount is not then on deposit in the Administrative Agent’s Account; and
(iv) Thereafter, to be deposited into the Borrower’s Account.
(B) If on such date an Event of Default is continuing:
(i) First, to be deposited into the Administrative Agent’s Account for the benefit of the Beneficiaries and the Collection Agent, the entire such amount to be applied to the payment in full of the Obligations and Collection Agent Fees; and
(ii) Thereafter, once all Obligations and Collection Agent Fees have been paid in full, to be deposited into the Borrower’s Account. For purposes of determining the amount to be deposited into the Administrative Agent’s Account pursuant to the preceding clause (A)(i) with respect to interest, Fees and Administrative Agent Amounts, the Administrative Agent shall, from time to time, provide written notice to the Collection Agent and the Borrower of the estimated per diem accrual amount of interest and Fees and of the Administrative Agent Amounts. The Borrower agrees that it shall not instruct the Collection Agent to direct the RFA Trustee to hold in the RFA Trustee’s Account all or a separate account designated by portion of any Collections that otherwise would be deposited into the Borrower’s Account (as defined in the Receivables Financing Agreement) pursuant to the terms of the Receivables Financing Agreement if doing so would reduce the amounts that would otherwise be deposited into the Administrative Agent’s Account or the Cure Account pursuant to any of clauses (A) (i), (ii) or (iii) above. The Borrower hereby authorizes the Administrative Agent, which at any time and from time to time upon the occurrence and during the continuance of a Default or an Event of Default or if the aggregate outstanding principal balance of the Loans exceeds the Borrowing Base or if the Maturity Date shall occur, to instruct the RFA Trustee to disburse to the Administrative Agent any and all amounts held by or otherwise in the possession or control of the RFA Trustee (including, without limitation, in the RFA Trustee’s Account) that are to be an account maintained and controlled deposited into the Borrower’s Account (as defined in the Receivables Financing Agreement) or otherwise paid to or for the benefit of the Borrower pursuant to the terms of the Receivables Financing Agreement. Any such amounts received by the Administrative Agent unless under the preceding sentence shall be deposited into the Administrative Agent’s Account and distributed in the manner provided in this Section 2.19.
(b) On each date on which any accrued interest, Fees or Collection Agent Fees are due and payable hereunder or any Administrative Agent Amounts have not been reimbursed or are due and payable and, in each case, there exists no Event of Default and such date is not the Maturity Date, the Administrative Agent otherwise instructs shall distribute the amount then on deposit in its sole discretion)the Administrative Agent’s Account in respect thereof to, for application in accordance with the priority case of payments set forth belowany such interest, all Collections on Pool Receivables that are received by Fees and Administrative Agent Amounts, the Servicer Administrative Agent or Lender entitled to receive the Borrower or received same and, in the case of any Lock-Box Accountsuch Collection Agent Fees, to the Collection Agent; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied if on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on any such date there shall be insufficient amounts on deposit in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall’s Account in respect thereof, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
distributed (i) first, to the Servicer Administrative Agent for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plusAdministrative Agent Amounts, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and the Collection Agent (if the Collection Agent is other Credit Party (ratably, based on the amount then than an Originator or one of its Affiliates) for due and owing)payable Collection Agent Fees, all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth ratably to the Administrative Agent and Lenders entitled to receive same for due and payable accrued interest and Fees and (iv) fourth, to the Collection Agent (if the Collection Agent is an Originator or one of its Affiliates) for due and payable Collection Agent Fees.
(c) During the continuance of an Event of Default or if the Maturity Date shall occur, the Administrative Agent shall distribute the amount on deposit in clause the Administrative Agent’s Account to the payment of the Obligations and Collection Agent Fees in the following order: (x)i) first, to the Administrative Agent for Administrative Agent Amounts, (yii) second, to the Collection Agent (if the Collection Agent is other than an Originator or one of its Affiliates) for accrued and unpaid Collection Agent Fees, (ziii) belowthird, ratably to the Administrative Agent and Lenders entitled to receive same for accrued and unpaid interest and Fees, (iv) fourth, ratably to the Lenders in reduction of the aggregate outstanding principal on the Loans until such principal is reduced to zero, (v) fifth, ratably to the Beneficiaries for other unpaid Obligations and (vi) sixth, to the Collection Agent (if the Collection Agent is an Originator or one of its Affiliates) for accrued and unpaid Collection Agent Fees.
(d) Nothing in this Section 2.19 shall relieve the Borrower of any obligation to pay any Obligation or Collection Agent Fee hereunder as and when the same shall be due and payable or to deposit into the Cure Account the amount then required to be deposited pursuant to Section 2.08(b). If, on the date any Obligations or Collection Agent Fees are payable to the Administrative Agent, any Lender or the Collection Agent hereunder, the amount then on deposit in the Administrative Agent’s Account in respect thereof is less than the amount thereof then due and payable, the Borrower shall pay to the Administrative Agent for the benefit of the relevant Beneficiaries or the Collection Agent, as applicable:, on such due date, the amount of such deficiency.
(e) If at any time any payment of any Obligations is rescinded or must otherwise be returned by a Beneficiary for any reason, effective upon such rescission or return such payment shall automatically be deemed, as between the Beneficiaries and the Borrower, never to have occurred, and the Borrower shall be required, to the extent it received any amounts under this Section 2.19 or otherwise, to remit to the Administrative Agent for the account of the applicable Beneficiaries an amount equal to the rescinded or returned payment.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent As set forth in Section 6.03 are satisfied the Monthly Report, on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Borrower (or the Servicer (oron its behalf), or following its assumption of exclusive control of the Lock-Box AccountsCollection Account, the Administrative Collateral Agent) shall, shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such Collections amounts to the applicable Person or account in the following order of priority:
(i) FIRST, pari passu (A) to the Hedge Counterparty, an amount equal to any Hedge Costs (exclusive of termination payments) and any such Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date and (B) to each Account Bank, the amount of any fees, costs or expenses payable to such Account Bank by the Borrower in connection with maintaining the related Controlled Account pursuant to the terms of the applicable Control Agreement to the extent such Account Bank has not previously debited or otherwise paid itself such fees, costs or expenses from the related Controlled Account in accordance with the applicable Control Agreement;
(ii) SECOND, pari passu (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, that each of if the parties hereto hereby acknowledge Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses; and agree that no (C) to the Backup Servicer, so long as it has not become the Successor Servicer hereunder, an amount equal to any accrued and unpaid Interest, Fees or Backup Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments)Payment Date, plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for unpaid Backup Servicing Fee from any prior Interest Period Payment Date, any reasonable and documented out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to the extent Backup Servicer up to $17,000 monthly (provided, however, that no such amount has not been distributed to such Lender or Credit Partymonthly limit shall exist if a Servicer Termination Event shall have occurred and be continuing);
(iii) thirdTHIRD, as set forth in clause to the Lenders, pro rata, an amount equal to the sum of any accrued and unpaid (A) Interest and (B) Yield;
(iv) FOURTH, pari passu (A) either (x)) during the Revolving Period, to the Principal Collection Account for application by the Borrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause (I) the Collateral Amount to equal or exceed the Minimum Collateral Amount and (II) the Forecasted Collections to equal or exceed the Minimum Forecasted Collections Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause (1) the Adjusted Collateral Amount to equal or exceed the Minimum Collateral Amount and (2) the Adjusted Forecasted Collections to equal or exceed the Minimum Forecasted Collections Amount; or (y) during the Amortization Period, to the Lenders, pro rata, the Principal Distributable Amount, until Capital has been reduced to zero, and (B) to the Hedge Counterparty, an amount equal to any accrued and unpaid Hedge Costs constituting termination payments (including any such amounts unpaid from any prior Payment Date);
(v) FIFTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(vi) SIXTH, to the Lenders, pro rata, an amount equal to the sum of any Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(vii) SEVENTH, to the Lenders, pro rata based upon the portion of such amounts owed to each such party, any Indemnified Amounts;
(viii) EIGHTH, during the Revolving Period, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(ix) NINTH, pari passu, (A) to the Backup Servicer, any amounts owed to the Backup Servicer, to the extent not paid pursuant to clauses (ii)(A) and (C) due to the cap specified in each such clause and (B) to the Collateral Agent, any accrued fees, reasonable out-of-pocket expenses or Indemnified Amounts;
(zx) belowTENTH, as applicable:to the Lenders for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full; and
(xi) ELEVENTH, to the Borrower any remaining amounts.
(b) (i) If on any Payment Date the amounts paid pursuant to Section 2.7(a)(iii) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Borrower (or the Servicer on its behalf), or following its assumption of exclusive control of the Reserve Account, the Collateral Agent, shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or the Servicer on its behalf), or following its assumption of exclusive control of the Reserve Account, the Collateral Agent, shall pay such amount to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as On each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release Payment Date prior to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Group A-1/A-2 Effective Date, the Servicer shall pay (oror shall instruct the Qualified Institution then holding the Collection Account to pay) to the following Persons, from the Collection Account to the extent of Available Funds the following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) firstFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer)Advances;
(ii) secondSecond, to each Lender and other Credit Party (ratablythe Servicer, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyServicing Fee;
(iii) thirdThird, if a backup servicer is duly appointed, to the backup servicer, the backup servicer fee;
(iv) Fourth, if a collateral custodial custodian is duly appointed, to the Collateral Custodian, the collateral custodian fee;
(v) Fifth, pro rata, to the Administrative Agent (a) the sum for such Payment Date of (1) the Class A-1 Senior Monthly Interest Payment Amount, for ratable distribution to the Lenders of the Class A-1 Loans Outstanding and (2) the Class A-2 Senior Monthly Interest Payment Amount, for ratable distribution to the Lenders of the Class A-2 Loans Outstanding, plus (b) for the ratable payment to the Lenders of each Class of Loans in an amount equal to any accrued and unpaid (1) Breakage Costs relating to any Loans of such Class, (2) net payments due under any Hedging Agreement, if any, relating to the Loans of such Class, (3) Unused Fees relating to such Class and (4) portion of the Upfront Fee due relating to such Class as set forth described in clause the Fee Letter;
(vi) Sixth, to any Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.14(e);
(vii) Seventh, to the Administrative Agent for the ratable payment (x)) to the Lenders of the Class A-1 Loans, the Class A-1 Monthly Principal Payment Amount for such Payment Date and (y) to the Lenders of the Class A-2 Loans, the Class A-2 Monthly Principal Payment Amount for such Payment Date, to be allocated between each Class of Loans pro rata;
(viii) Eighth, pro rata to the Administrative Agent the sum for such Payment Date of (1) the Class A-1 Subordinated Monthly Interest Payment Amount, for ratable distribution to the Lenders of the Class A-1 Loans Outstanding and (2) the Class A-2 Subordinated Monthly Interest Payment Amount, for ratable distribution to the Lenders of the Class A-2 Loans Outstanding;
(ix) Ninth, to the Administrative Agent for the ratable payment to each Lender and each Class of Loans in an amount equal to all other Aggregate Unpaids allocable to the Loans Outstanding of such Class (other than the principal amount of such Loans Outstanding) then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or the Indemnified Parties, for the payment thereof;
(zx) belowTenth, as applicable:if a Partial Expiration Event has occurred, to the Administrative Agent the remaining funds to reduce pro rata the portion of the applicable Loans Outstanding constituting the Lender Advances of any Non-Extending Lender, to zero;
Appears in 1 contract
Samples: Investment Agreement (Santander Holdings USA, Inc.)
Settlement Procedures. On each Payment Date, no later than 11:00 a.m. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 discretionNew York City time), for application the Paying Agent shall disburse amounts on deposit in the Collection Account in accordance with the priority of payments set forth belowMonthly Report and the following priorities to the following Persons:
(a) On each Payment Date and on each Business Day on or after the Termination Date, all Interest Collections on Pool Receivables that are received by deposit in the Servicer or the Borrower or received in any Lock-Box Account; providedInterest Collection Subaccount, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections will be applied in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) First, (1) first, pro rata, to the Servicer (on behalf of the Borrower) for the payment of to the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicableappropriate taxing authorities, the amount of Servicing Fees payable for any prior Interest Period taxes and governmental fees owed by the Borrower, (2) second, to pay to the extent Collateral Custodian, the Paying Agent and the Administrative Agent any Administrative Expenses payable on such Payment Date, provided that the amount has applied under this clause (a)(i)(2) for such Payment Date shall not been distributed exceed the Administrative Expense Cap applicable to such Payment Date; and (3) third, to pay all reasonable out-of-pocket costs and expenses of the Servicer)Servicer or BCA incurred on behalf of the Borrower; provided that the amount applied under this clause (a)(i)(3) for such Payment Date shall not exceed $50,000;
(ii) secondSecond, to each Lender and other Credit Party (ratablythe Servicer, based on the in an amount then due and owing), all equal to any accrued and unpaid Interest, Senior Servicing Fees and Breakage Fees due to such Lender and other Credit Party for unless otherwise waived by the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyServicer;
(iii) thirdThird, as set forth to each Managing Agent, on behalf of the related Lenders, in clause an amount equal to (x)1) any accrued and unpaid Interest for such Payment Date and (2) the Unused Commitment Fee, pro rata, on the basis of the amount owed;
(yiv) or Fourth, to each Managing Agent, on behalf of the related Lenders, pro rata, to pay the Advances Outstanding in an amount necessary to satisfy the Borrowing Base Test;
(zv) belowFifth, as applicable:to each Managing Agent, on behalf of the related Lenders, pro rata, to pay the Advances Outstanding to the extent required to satisfy the Interest Coverage Ratio Test;
(vi) Sixth, to the Syndication Agent, any Syndication Fee due and payable from the Borrower;
Appears in 1 contract
Settlement Procedures. (a) The On each Payment Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and Servicer shall set aside and hold in trust for the benefit of the Secured Parties Advances (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Servicer, an amount equal to any Unreimbursed Servicer Advances;
(iii) THIRD, 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 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;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (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;
(vi) SIXTH, during the Revolving Period, to the Deal Agent for the account of the initial Settlement Date shall be payable on Lenders, an amount equal to the Monthly Principal Payment Amount for such Settlement Date and instead such amounts shall be payable on the following Settlement Payment Date:;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, (i) firstduring the Revolving Period with respect to each Dissenting Investor, pro rata, an amount equal to its outstanding Capital until such Dissenting Investor's Capital has been reduced to zero and (ii) during the Amortization Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(ix) NINTH, to the Deal Agent for the immediately preceding Interest Period account of the Lenders and the Backup Servicer, an amount equal to Increased Costs, any Additional Amounts and Indemnified Amounts (plusprovided that, if applicablewith respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) the amount of Servicing Fees payable for necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any prior Interest Period to the extent such amount has not been distributed to the Servicerdeposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days' prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xii), plus, if applicable, .
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a "Reserve Advance") and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corporation)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent As set forth in Section 6.03 are satisfied the Monthly Report, on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Borrower (or the Servicer (oron its behalf), or following its assumption of exclusive control of the Lock-Box AccountsCollection Account, the Administrative Collateral Agent) shall, shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such Collections amounts to the applicable Person or account in the following order of priority:
(i) FIRST, pari passu (A) to the Hedge Counterparty, an amount equal to any Hedge Costs (exclusive of termination payments) and any such Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date and (B) to each Account Bank, the amount of any fees, costs or expenses payable to such Account Bank by the Borrower in connection with maintaining the related Controlled Account pursuant to the terms of the applicable Control Agreement to the extent such Account Bank has not previously debited or otherwise paid itself such fees, costs or expenses from the related Controlled Account in accordance with the applicable Control Agreement;
(ii) SECOND, pari passu (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, that each of if the parties hereto hereby acknowledge Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses; and agree that no (C) to the Backup Servicer, so long as it has not become the Successor Servicer hereunder, an amount equal to any accrued and unpaid Interest, Fees or Backup Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments)Payment Date, plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for unpaid Backup Servicing Fee from any prior Interest Period Payment Date, any reasonable and documented out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to the extent Backup Servicer up to $17,000 monthly (provided, however, that no such amount has not been distributed to such Lender or Credit Partymonthly limit shall exist if a Servicer Termination Event shall have occurred and be continuing);
(iii) thirdTHIRD, as set forth to the Lenders, pro rata, an amount equal to the sum of any accrued and unpaid (A) Interest (after giving effect to any Interest True-Up Amounts for such Payment Date in clause accordance with Section 2.4(b)) and (B) Yield;
(iv) FOURTH, pari passu (A) either (x)) during the Revolving Period, to the Principal Collection Account for application by the Borrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause (I) the Collateral Amount to equal or exceed the Minimum Collateral Amount and (II) the Forecasted Collections to equal or exceed the Minimum Forecasted Collections Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause (1) the Adjusted Collateral Amount to equal or exceed the Minimum Collateral Amount and (2) the Adjusted Forecasted Collections to equal or exceed the Minimum Forecasted Collections Amount; or (y) during the Amortization Period, to the Lenders, pro rata, the Principal Distributable Amount, until Capital has been reduced to zero, and (B) to the Hedge Counterparty, an amount equal to any accrued and unpaid Hedge Costs constituting termination payments (including any such amounts unpaid from any prior Payment Date);
(v) FIFTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(vi) SIXTH, to the Lenders, pro rata, an amount equal to the sum of any Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(vii) SEVENTH, to the Lenders, pro rata based upon the portion of such amounts owed to each such party, any Indemnified Amounts;
(viii) EIGHTH, during the Revolving Period, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(ix) NINTH, pari passu, (A) to the Backup Servicer, any amounts owed to the Backup Servicer, to the extent not paid pursuant to clauses (ii)(A) and (C) due to the cap specified in each such clause and (B) to the Collateral Agent, any accrued fees, reasonable out-of-pocket expenses or Indemnified Amounts;
(zx) belowTENTH, as applicable:to the Lenders for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full; and
(xi) ELEVENTH, to the Borrower any remaining amounts.
(b) (i) If on any Payment Date the amounts paid pursuant to Section 2.7(a)(iii) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Borrower (or the Servicer on its behalf), or following its assumption of exclusive control of the Reserve Account, the Collateral Agent, shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or the Servicer on its behalf), or following its assumption of exclusive control of the Reserve Account, the Collateral Agent, shall pay such amount to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) Collection of the --------------------- Receivables shall be administered by the Servicer in accordance with the terms of this Agreement and the Servicing Agreement. The Seller shall provide to the Servicer on a timely basis all information and written direction needed and written direction for such administration, including notice of the occurrence of any Termination Day and current computations of the aggregate of the Purchased Interests of all Purchasers. All Collections of Pool Receivables shall be removed from each Lock-Box Account and within two Business Days of deposit thereof remitted to the Collection Account and all other collections shall be removed from each Lock-Box Account or the Collection Account within two Business Days of deposit thereof and remitted to the applicable Originator or its designee.
(b) The Servicer shall shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer:
(i) set aside and hold in trust for in the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be Collection Account 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release amount equal to the Borrower from such Collections accrued and unpaid Discount, Servicing Fee, Administration Fee, Program Fee and Liquidity Fee (to the amount extent not previously so set aside); and
(if anyc) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Datedeposit:
(i) from amounts set aside thereby pursuant to Section 1.4(b)(i) during the related Fixed Period: -----------------
(A) first, to the Servicer (if the Servicer is not ----- Mail-Well I Corporation or an Affiliate thereof), any accrued and unpaid Servicing Fee for the payment related Fixed Period;
(B) second, to the Administration Account (or such ------ other account designated by the Administrator), any accrued and unpaid Discount (on each Portion of the accrued Servicing Fees payable Capital), Administration Fee, Program Fee and Liquidity Fee for the immediately preceding Interest Period related Fixed Period; and
(plusC) third, if applicableany remaining amounts in accordance with ----- Section 1.4(c)(ii) below. ------------------
(ii) from amounts set aside thereby pursuant to Section 1.4(b)(ii) or available pursuant to Section 1.4(c)(i)(C) ------------------ -------------------- above:
(A) first, the amount of Servicing Fees payable for any prior Interest Period to the extent funds are available ----- therefor, if such amount day is a Termination Day or the Seller has not been distributed requested a reduction of Capital pursuant to Section 1.4(f)(iii), to the ServicerAdministration Account (or ------------------- such other account designated by the Administrator), the aggregate outstanding Capital of all Purchasers (or, in the case of a reduction of Capital pursuant to Section 1.4(f)(iii), -------------------- the aggregate amount of such reduction);
(iiB) second, to pay any amount in Sections 1.4(c)(i)(A) ------ --------------------- or 1.4(c)(i)(B) (in that order of priority) not otherwise ------------ paid in full in accordance therewith; and
(C) third, to pay any other Obligations payable ----- by the Seller hereunder or under any other Transaction Document;
(D) fourth, to the Servicer (if the Servicer is ------ Mail-Well I Corporation or an Affiliate thereof), any accrued and unpaid Servicing Fee for the related Fixed Period; and
(E) fifth, if (i) such Settlement Date is not a ----- Termination Day and to the extent the applicable conditions set forth in Exhibit II hereto have been satisfied, to the ---------- Seller as a reinvestment in Receivables to the extent the aggregate of the Purchased Interests of all Purchasers (expressed as a percentage) would not exceed 100% after giving effect to such distribution to the Seller, with any excess amounts remaining in the Collection Account for distribution in accordance with this Section 1.4(c)(ii) on the next Settlement Date or ------------------ (ii) the Final Payout Date has occurred, to the Seller. If such Settlement Date is not a Termination Day, to the extent it would have been a return of Capital upon remittance to each Lender Purchaser, such Purchaser shall be deemed to have reinvested the percentage of Collections represented by the Purchased Interest of such Purchaser not distributed to such Purchaser and other Credit Party (ratablysuch Purchased Interest shall be automatically recomputed pursuant to Section 1.3. To the extent there ----------- are not sufficient funds available to distribute all amounts within a given level of priority, such available funds will be distributed within such level of priority on a pro rata basis based on the amount then due and owingunpaid.
(d) Upon receipt of funds deposited into the Administration Account pursuant to Section 1.4(c) or 1.4(f)(iii), the Administrator ----------------------------- shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first, to the applicable Purchasers in payment ----- in full of all accrued Discount (on each Portion of Capital), second, to the applicable Securitization Parties in payment of ------ any accrued and unpaid InterestAdministration Fee, Fees Program Fee and Breakage Fees due Liquidity Fee, and third, to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect applicable Purchasers as a ----- reduction of Capital of such paymentsPurchasers pursuant to Section 1.4(f), plus, if applicable; and --------------
(ii) if such distribution occurs on a Termination Day, first, to the applicable Purchasers in payment in full of all ----- accrued Discount (on each Portion of Capital), second, to the ------ applicable Securitization Parties in payment in full of any accrued and unpaid Administration Fee, Program Fee and Liquidity Fee, third, to the applicable Purchasers in payment in full of ----- all Capital of such Purchasers, and fourth, if the Capital and ------ accrued Discount of all Purchasers has been reduced to zero, to the Securitization Party and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the aggregate outstanding Capital of all Purchasers and Discount (on each Portion of Capital) of all Purchasers and any Administration Fee, Program Fee, Liquidity Fee and Servicing Fee, and any other amounts payable by the Seller to the Securitization Parties or any other Indemnified Party, Affected Person or any other Person hereunder, have been paid in full, all additional Collections shall be paid to the Seller for its own account. To the extent there are not sufficient funds available to distribute to all Purchasers all amounts within a given level of priority, such available funds will be distributed by the Administrator within such level of priority on a pro rata basis based on the amount then due and unpaid to such Purchasers.
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, goods or services, or any discount or other adjustment made by the Seller or the Servicer or any setoff or dispute between the Seller, the Servicer or any other Person and an Obligor ("Dilution"), the Seller -------- shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of any such InterestDilution and the Seller shall immediately deposit such amount into the Collection Account for distribution in accordance with this Section 1.4; ----------- provided, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period however, that to the extent such amount has would be -------- ------- immediately remitted to the Seller pursuant to the proviso in Section 1.4(b)(ii), such deposit and remittance may be made by ------------------ book-entry only;
(ii) if on any day any of the representations or warranties in paragraphs (h) or (n) of Exhibit III is not true with -------------- --- ----------- respect to any Pool Receivable (except as a result of a Receivable becoming a Defaulted Receivable after the date such representation or warranty was made), the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and the Seller shall immediately deposit such amount into the Collection Account for distribution in accordance with this Section 1.4; ----------- provided, however, that to the extent such amount would be -------- ------- immediately remitted to the Seller pursuant to the proviso in Section 1.4(b)(ii), such deposit and remittance may be made by ------------------ book-entry only; and
(iii) if and to the extent any Securitization Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been distributed so received but rather to have been retained by the Seller and, accordingly, such Lender Securitization Party shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or Credit Partyon behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the aggregate outstanding Capital of all Purchasers (but not to commence the liquidation, or reduction to zero, of the entire Capital of all Purchasers), the Seller may do so as follows:
(i) the Servicer shall set aside Collections and hold them in trust for the Purchasers under Section 1.4(b)(ii) until the amount so set aside shall ------------------ equal the desired amount of reduction;
(ii) the Seller shall give the Administrator written notice of the amount of such proposed reduction and the date on which such reduction will occur by no later than the Required Notice Days prior to the date on which such reduction will occur;
(iii) thirdon the date of such reduction, as the Servicer shall deposit such Collections from amounts set forth aside and held in clause (x), (ytrust pursuant to Section 1.4(b)(ii) or (z) below, as applicable:on such date ------------------ into the Administration Account for distribution in accordance with
Appears in 1 contract
Settlement Procedures. (a) The Servicer On each Payment Date, the Collateral Agent shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to the Backup Servicer 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, that each 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 parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (B) the Program Fee, and (C) the Unused Fee, Increased Costs and any Additional Amounts due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(iv) firstFIFTH, during the Revolving Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, an amount equal to the Monthly Principal Payment Amount for the immediately preceding Interest Period such Payment Date;
(plusvi) SIXTH, if applicableto any Successor Servicer, the amount of Servicing Fees payable for any prior Interest Period to the extent not already paid pursuant to clause THIRD above, an amount equal to Reliening Expenses;
(vii) SEVENTH, (A) during the Revolving Period with respect to each Dissenting Lender after the time its Commitment has been reduced to zero pursuant to Section 2.1(b)(iv), pro rata, an amount equal to its outstanding Capital until such amount Dissenting Lender’s Capital has not been distributed reduced to zero and (B) during the Amortization Period, to the Deal Agent for the account of the Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(viii) EIGHTH, to the Deal Agent for the account of the Lenders 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 THIRD 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iix) secondTENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause THIRD above and any such Servicing Fee unpaid from any prior Payment Date;
(xi) ELEVENTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full; and
(xii) TWELFTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days' prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xi), plus, if applicable, .
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(iv) and (vii) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, the Borrower (or at all times after the occurrence and continuance of a Termination Event, the Collateral Agent) shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date;
(ii) SECOND, [Reserved];
(iii) THIRD, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to Xxxxx Fargo up to $17,000, monthly;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Lenders, ratably, an amount equal to the sum of the parties hereto hereby acknowledge and agree that no any accrued and unpaid Interest(A) Interest and Breakage Costs, Fees or Servicing Fees owing as (B) Program Fee, and (C) Unused Fee due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(ivi) firstSIXTH, during the Revolving Period, to the Servicer for Lenders, ratably (based on the payment outstanding principal amount of the accrued Servicing Fees payable Revolving Loans of each Lender), an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, during the immediately preceding Interest Period Amortization Period, to the Lenders, ratably (plus, if applicablebased on the outstanding principal amount of the Revolving Loans of each Lender), the Additional Principal Payment Amount, until the Aggregate Loan Amount has been reduced to zero;
(ix) NINTH, ratably to the Lenders and the Backup Servicer, an amount equal to 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 THIRD above) due in respect of Servicing Fees payable for such Payment Date and unpaid from any prior Interest Period Payment Date;
(x) TENTH, to the extent such Reserve Account, (A) an amount has not been distributed equal to any outstanding Reserve Advances and (B) the Serviceramount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on if it has become the amount then Successor Servicer, any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as a payment in reduction of the portion of the Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, plusthe Borrower (or the Collateral Agent, if as applicable, ) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent such amount has not been distributed to such Lender Collection Account. The Borrower (or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) belowthe Collateral Agent, as applicable:) shall pay such amount ratably to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (orshall instruct the Paying Agent to pay to the following Persons, from the Collection Account to the extent of Available Funds the following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the following order of priority; provided, however, that each of as set forth in the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement DateMonthly Report:
(i) first, to the Servicer for the payment of Servicer, the accrued and unpaid Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer)Fee;
(ii) second, pro rata (A) to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then due and owing)Backup Servicing Fee for the related Collection Period, together with all accrued and unpaid Interestcosts, Fees expenses and Breakage Fees indemnities then due and payable to the Backup Servicer; provided, that such Lender costs, expenses and other Credit Party indemnities shall not exceed $50,000 in the aggregate during any calendar year prior to the occurrence of the Termination Event, or $250,000 in the aggregate during any calendar year during the continuation of a Termination Event; (B) to the Collateral Custodian, the Collateral Custodian Fee for the immediately preceding Interest Period related Collection Period, together with all accrued and unpaid costs, expenses and indemnities then due and payable to the Collateral Custodian; provided, that such costs, expenses and indemnities shall not exceed $50,000 in the aggregate during any calendar year prior to the occurrence of the Termination Event, or $250,000 in the aggregate during any calendar year during the continuation of a Termination Event; (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicableC) to the Paying Agent, the amount of any such InterestPaying Agent Fee for the related Collection Period, Fees together with all accrued and Breakage Fees (including any additional amounts or indemnified amounts unpaid Paying Agent Fees, expenses and indemnities then due and payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent Paying Agent; provided, that such amount has Paying Agent Fees, expenses and indemnities shall not been distributed exceed $50,000 in the aggregate during any calendar year prior to such Lender the occurrence of the Termination Event, or Credit Party$250,000 in the aggregate during any calendar year during the continuation of a Termination Event; and (D) to any Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.15(e);
(iii) third, as set forth pro rata, (A) to the Administrative Agent for distribution to each Lender Group Agent (for the account of the Lenders in clause the related Lender Group), an amount equal to any accrued and unpaid Senior Interest and Fees and (B) to each applicable Hedge Counterparty, the net payments due under any Hedging Agreement (other than Hedge Termination Payments), if any;
(iv) fourth, to each applicable Hedge Counterparty, any Senior Hedge Termination Payments due but not paid to such Hedge Counterparty;
(v) fifth, to the Administrative Agent for distribution to each Lender Group Agent (for the account of the Lenders in the related Lender Group) on a pro rata basis, in an amount equal to the Monthly Principal Payment Amount, which amounts shall be applied in accordance with Section 2.07;
(vi) sixth, to the Administrative Agent for distribution to each Lender Group Agent (for the account of the Lenders in the related Lender Group) in an amount equal to the Subordinated Interest and Fees;
(vii) seventh, pro rata, (A) to the Reserve Account, the amount (if any) necessary to cause the Reserve Amount to be equal to the Reserve Account Required Amount and (B) to the Hedge Reserve Account, the amount (if any) necessary to cause the Hedge Account Reserve Amount to be equal to the Hedge Account Required Amount;
(viii) eighth, if a Partial Expiration Event has occurred with respect to a Lender Group but the Amortization Date has not occurred, to the Administrative Agent for distribution to each applicable Lender Group Agent (for the account of the Lenders in the related Lender Group) in reduction of the portion of the Loans Outstanding held by such Lender Group, an amount equal to the product of (x), ) amounts available after giving effect to clauses (i) through (vi) above and (y) the Invested Percentage of such Lender Group as of the date of such Partial Expiration Event, until the outstanding Principal Amount of such Loan equals zero;
(ix) ninth, to each applicable Hedge Counterparty, any Subordinated Hedge Termination Payments due but not paid to such Hedge Counterparty;
(x) tenth, to the Administrative Agent for distribution to each Lender Group Agent (for the account of the Lenders in the related Lender Group) in an amount equal to all other Aggregate Unpaids (other than the Loans Outstanding and accrued and unpaid Senior Interest and Fees and the Subordinated Interest and Fees) then due and payable by the Borrower under this Agreement and the other Transaction Documents;
(xi) eleventh, to the extent not previously paid pursuant to clause (ii) above, pro rata to the Backup Servicer, the Paying Agent and the Collateral Custodian, any fees, costs, expenses and indemnities then due and payable to the Backup Servicer, the Paying Agent or the Collateral Custodian under the Transaction Documents;
(zxii) belowtwelfth, to the Administrative Agent for the ratable payment to each Lender Group Agent (for the account of the Lenders in the related Lender Group), in an amount equal to the amount of any prepayment of the Loans Outstanding pursuant to Section 2.06; and
(xiii) thirteenth, so long as applicable:no Termination Event or Unmatured Termination Event has occurred, any remaining amount shall be distributed to or at the direction of the Borrower. All payments under this Section 2.08 payable to any Lender on any Payment Date shall be paid by the Administrative Agent to the related Lender Group Agent, for the account of such Lender, or as such Lender Group Agent may otherwise direct (which direction may be a standing instruction) the Administrative Agent in writing not later than the related Determination Date.
Appears in 1 contract
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which All Collections on Pool Receivables shall be an account maintained and controlled by held in the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for Borrower Collection Accounts until their application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 5.03 are satisfied on such datedate (as evidenced by the related Release), the Borrower (or the Initial Servicer may on its behalf) may, subject to Section 3.02, direct the Paying Agent and the Account Bank to release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Initial Purchase and Sale Agreement Agreement, (ii) for payment by the Borrower with respect to any Subordinated Note on any Monthly Settlement Date from available collections under clause (vii) below or (iii) for distribution to the Parent as a return on the Parent’s equity interest in the Borrower on any Monthly Settlement Date from available collections under clause (vii) below (each such release, a “Release”). On each Settlement Date, and to the Servicer extent required in accordance with Section 8.10, the Paying Agent shall (or, following its assumption of control subject to Section 3.02) distribute all Collections received during the related Settlement Period held in the Borrower Collection Accounts and any amounts on deposit in the Interest Reserve Account in excess of the Lock-Box Accounts, Interest Reserve Amount as of such Settlement Date in accordance with the Administrative Agent) shall, distribute such Collections Information Package in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to pay any fees and out-of-pocket expenses and indemnities due to the Collateral Agent, Paying Agent, Account Bank and Back-up Servicer, up to an aggregate maximum amount of $150,000 in any given calendar year; provided that, in the event that an Early Amortization Event, Unmatured Initial Servicer Default, Initial Servicer Default, Event of Default or Unmatured Event of Default has occurred and is continuing, the fees and out-of-pocket expenses and indemnities due to the Collateral Agent, Paying Agent, Account Bank and Back-up Servicer shall not be subject to such $150,000 maximum amount;
(ii) second, to the Administrative Agent, any out-of-pocket expenses and indemnities due to the Administrative Agent through the related Interest Period;
(iii) third, (a) so long as no Event of Default has occurred (or has been waived or consented to in accordance with Section 13.01) on or prior to such Settlement Date, to each Lender and other Credit Party (ratably, based on the amount then due and owing to such Credit Party), all accrued and unpaid Interest, Fees (other than fees payable in accordance with clause (ii) above) and Breakage Amount due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Amounts (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Interest Period; and (b) if an Event of Default has occurred (and has not been waived or consented to in accordance with Section 13.01) on or prior to such Settlement Date, to each Class A1 Lender (ratably, based on the amount then due and owing to all Class A1 Lenders), all accrued and unpaid Interest, Fees and Breakage Amount due to such Class A1 Lender for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Amounts (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable to such Class A1 Lender for any prior Interest Period;
(iv) fourth, to the Servicer (or, to the extent set forth in the Back-up Servicing Agreement following a Servicing Transfer Date, to the Back-up Servicer and the Initial Servicer) for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(iiv) secondfifth, prior to the occurrence of the Revolving Period Termination Date, to deposit in the Interest Reserve Account, an amount equal to any Interest Reserve Account Deficit Amount;
(vi) sixth, as set forth in clauses (A) through (D) below, in such order, as applicable:
(A) prior to the occurrence of the Revolving Period Termination Date, to each Lender and other Credit Party (ratably, based on the amount then due and owingowing to such Lender pursuant to this clause (A)), the Class A1 Monthly Principal Payment Amount and the Class A2 Monthly Principal Payment Amount, as applicable;
(B) on or after the Revolving Period Termination Date so long as no Event of Default has occurred (or has been waived or consented to in accordance with Section 13.01) on or prior to such Settlement Date, any remaining available funds to each Lender (ratably, based on the aggregate outstanding principal amount of the Loans of such Lender) until the aggregate outstanding principal amount of the Loans is reduced to zero;
(C) if an Event of Default has occurred (and has not been waived or consented to in accordance with Section 13.01) on or prior to such Settlement Date, to each Class A1 Lender (ratably, based on the aggregate outstanding principal amount of the Class A Loans of such Class A1 Lender), for the payment in full of the aggregate outstanding principal amount of the Class A1 Loans; and
(D) if an Event of Default has occurred (and has not been waived or consented to in accordance with Section 13.01) on or prior to such Settlement Date, to the Class A2 Lenders (ratably, based on the amounts then due and owing to such Class A2 Lenders), (1) all accrued and unpaid Interest, Fees and Breakage Fees Amount due to such Class A2 Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 4.03 and 13.01 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees Amounts (including any additional amounts or indemnified amounts payable under Sections 5.03 4.03 and 13.01 12.01 in respect of such payments) payable to such Class A2 Lender for any prior Interest Period Period, and (2) for the payment in full of the aggregate outstanding principal amount of the Class A2 Loans;
(vii) seventh, to the Back-up Servicer, the Collateral Agent, the Account Bank, the Paying Agent, the Credit Parties, any other Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Borrower Obligations (including any indemnified amounts payable under Section 11.01, any expenses paid as advances by the Back-up Servicer in accordance with the terms of the Back-up Servicing Agreement and any fees or expenses otherwise payable under clause (i) above) then due and owing by the Borrower to the Back-up Servicer, the Collateral Agent, the Account Bank, Paying Agent, Credit Parties, any other Affected Persons and the Borrower Indemnified Parties; and
(viii) eighth, the balance, if any, to be paid to, or at the direction of, the Borrower for its own account.
(b) All payments or distributions to be made to the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties) hereunder shall be paid or at the direction of the Administrative Agent for the benefit of the related Lender at its Lender’s Account. Each Lender, upon its receipt in the applicable Lender’s Account of any such payments or distributions, shall distribute such amounts to its applicable related Affected Persons and the Borrower Indemnified Parties. Notwithstanding anything to the contrary set forth in this Section 3.01, the Administrative Agent shall have no obligation to distribute or pay any amount under this Section 3.01 except to the extent actually received by the Administrative Agent. Each payment by the Servicer or the Borrower to the Administrative Agent for the account of any Credit Party hereunder shall be deemed to constitute payment by the Servicer or the Borrower directly to such amount has not been distributed Credit Party, provided, however, that in the event any such payment by the Servicer or Borrower is required to be returned to the Servicer or Borrower for any reason whatsoever, then the Servicer’s or Borrower’s obligation to such Lender or with respect to such payment shall be deemed to be automatically reinstated. Additionally, each Lender hereby covenants and agrees to provide timely and accurate responses to each of the Administrative Agent’s requests for information necessary for the Administrative Agent to make the allocations to the Lenders required to be made by the Administrative Agent hereunder, including the applicable account of each Lender for which amounts should be distributed.
(c) If and to the extent the Administrative Agent, any Credit Party, any other Secured Party, any Affected Person, any WT Indemnified Party or any Borrower Indemnified Party shall be required for any reason to pay over to any Person any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, such Credit Party, such Affected Person, such WT Indemnified Party or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 3.01:
(i) Deemed Collections payments made by the Originators to the Borrower under the Initial Purchase and Sale Agreement shall be treated as Collections and held for application pursuant to Section 3.01(a);
(iiiii) thirdexcept as otherwise required by Applicable Law or the relevant Contract, as set forth all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in clause 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
(x)e) if and to the extent the Administrative Agent, any Credit Party, any other Secured Party, any other Affected Person, any WT Indemnified Party or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (yor 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 Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Notwithstanding the other provisions of this Section 3.01 or any other term of this Agreement, to the extent that any bank where an Originator Collection Account is held is entitled to an indemnification or expenses claim from the Borrower or (zfollowing the delivery of a notice of control) belowthe Collateral Agent pursuant to the related Account Control Agreement, as applicable:the Borrower or (following the delivery of a notice of control) the Collateral Agent may request a withdrawal from the Borrower Collection Account to satisfy such obligation by delivering a request in writing to the Administrative Agent, the Paying Agent and the Account Bank two Business Days prior to the requested date of the requested payment to the Originator Collection Account Bank. Unless the Administrative Agent shall have delivered written notice of its objection to such payment by 5:00 p.m (New York City time) on the Business Day prior to the requested date of such payment, the Account Bank shall (solely to the extent insufficient cash is available in the Borrower Collection Account) liquidate sufficient Permitted Investments held pursuant to Section 8.10 to make such payment and the Paying Agent shall wire the requested funds to the applicable Originator Collection Account bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Sinclair Broadcast Group Inc)
Settlement Procedures. On each Payment Date, no later than 11:00 a.m. (New York City time) the Paying Agent shall, from the Collection Account, to the extent of available funds (such amounts being the “Available Collections”) disburse the following amounts in the following order of priority:
(a) The Servicer shall set aside During the Revolving Period, and hold in trust each case unless otherwise specified below, applying Available Collections:
(i) FIRST, ratably, (A) to the Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the benefit of payment thereof in an aggregate amount not to exceed the Secured Parties Bank Fees and Expenses and the Administrative Expense Cap, and (or, if so requested by B) to the Administrative Agent, segregate in a separate account designated by the an amount equal to any accrued and unpaid Administrative AgentAgent Fee and Administrative Expenses;
(ii) SECOND, which shall be an account maintained and controlled by to the Administrative Agent unless for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Unused Fee and Minimum Earnings Fee for such Payment Date;
(iii) THIRD, first, to the Administrative Agent otherwise instructs in its sole discretion)for payment to each Managing Agent, for application in accordance with on behalf of the priority related Lenders, an amount equal to the excess, if any, of payments set forth belowAdvances Outstanding over the Maximum Availability, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Accountpro rata; provided, however, that so long as to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(iv) FOURTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the conditions precedent set forth related Lenders, in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount of Increased Costs, and/or Taxes (if any);
(v) necessary FIFTH, to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) shallSIXTH, distribute such Collections in to the following order Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(vii) SEVENTH, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement DateAvailable Collections:
(i) firstFIRST, ratably, (A) to the Servicer Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount not to exceed the Bank Fees and Expenses and the Administrative Expense Cap, provided, that if the Advances have been accelerated following the occurrence and during the continuance of an Event of Default, and the sale of the accrued Servicing Fees payable for the immediately preceding Interest Period Collateral has commenced in connection therewith, such limitations specified therein shall not be given any effect, and (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period B) to the extent such Administrative Agent, in an amount has not been distributed equal to the Servicer)any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(ii) secondSECOND, to the Administrative Agent for payment to each Lender and other Credit Party (ratablyManaging Agent, based on behalf of the related Lenders, in an amount then due and owing), all equal to any accrued and unpaid Interest, Fees and Breakage Fees due to Interest for such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPayment Date;
(iii) thirdTHIRD, as set forth to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in clause an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(xiv) FOURTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs and/or Taxes (if any);
(v) FIFTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(yvi) SIXTH, to the Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(zvii) belowSEVENTH, as applicable:all remaining amounts to the Borrower.
Appears in 1 contract
Settlement Procedures. (a) The Servicer On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set aside forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the Collateral Custodian, in an amount equal to any accrued and hold unpaid Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(1), Section 2.7(b)(1) and Section 2.8(1) shall not exceed $100,000 per annum;
(2) pro rata to each Lender, in trust an amount equal to (A) such Lender’s share of the Interest for the benefit related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s Share of the Secured Parties Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by C) any unpaid Breakage Costs with respect to such Lender;
(3) pro rata to the Administrative Agent unless and each Lender, all fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding, Commitment Reduction Fee and Administrative Expenses, then due to each such Person under this Agreement;
(4) pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) pro rata to each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee;
(6) after the end of the Revolving Period, to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(7) pro rata to each applicable party, to pay all other accrued and unpaid Administrative Expenses and Taxes; and
(8) (A) during a Default, to remain in the Interest Collection Account or (B) otherwise, any remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager). USActive 37382726.29 51
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a)(1), to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to Section 2.7(a)(1), this Section 2.7(b)(1) and Section 2.8(1) shall not exceed $100,000 per annum;
(2) to the extent not paid pursuant to Section 2.7(a)(2), pro rata to each Lender, in an amount equal to (A) such Lender’s share of the Interest for the related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s share of the Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(3) to the extent not paid pursuant to Section 2.7(a)(3), pro rata to the Administrative Agent otherwise instructs in its sole discretionand each Lender, all other fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding, Commitment Reduction Fee and Administrative Expenses, then due to each such Person under this Agreement;
(4) to the extent not paid pursuant to Section 2.7(a)(4), pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) to the extent not paid pursuant to Section 2.7(a)(5), pro rata to each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee;
(6) during the Revolving Period, (x) to each Non-Extending Lender to pay Advances Outstanding in an amount equal to the Pro Rata Share of such Non-Extending Lender and (y) the remainder as directed by the Collateral Manager, to (A) repay Advances Outstanding, (B) return cash to the Principal Collection Account for application in accordance with the priority of payments set forth belowterms hereof and/or (C) unless a Default or Curable BDC Asset Coverage Event has occurred and is continuing, all Collections on Pool Receivables that are received by or after giving effect to such distribution the Servicer Availability is less than zero, to be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager);
(7) after the end of the Revolving Period and to the extent not paid pursuant to Section 2.7(a)(6), to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(8) after the end of the Revolving Period or received after the occurrence and during the continuation of a Curable BDC Asset Coverage Event, to the Lenders to pay the Advances Outstanding;
(9) to the extent not paid pursuant to Section 2.7(a)(7), pro rata to each applicable party to pay all other Administrative Expenses and Taxes; and USActive 37382726.29 52
(10) (A) during a Default, to remain in the Principal Collection Account or (B) otherwise, any Lock-Box Account; providedremaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, howeverincluding distribution to the Collateral Manager).
(c) The Collateral Manager may, that so long as each in its sole discretion, direct the Collateral Custodian to make a payment to the Borrower from the Principal Collection Account on any Business Day other than a Payment Date if, both immediately prior and after giving effect to such payment (i) the Availability is greater than zero and (ii) no Default, Event of Default or Curable BDC Asset Coverage Event has occurred and is continuing.
(d) Subject to the satisfaction of the conditions precedent set forth in Section 6.03 are satisfied on such date3.2, the Servicer Collateral Manager may release direct the Collateral Custodian to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower withdraw funds on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections deposit in the following Principal Collection Account on any Business Day in order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall to reinvest such funds in Eligible Loans to be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:pledged hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (New Mountain Finance Corp)
Settlement Procedures. (a) The On each Payment Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and Servicer shall set aside and hold in trust for the benefit of the Secured Parties Advances (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Servicer, an amount equal to any Unreimbursed Servicer Advances;
(iii) THIRD, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to SST up to $17,000, monthly;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (B) the Program Fee, and (C) the Unused Fee, Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(vi) SIXTH, during the Revolving Period, to the Deal Agent for the account of the initial Settlement Date shall be payable on Lenders, an amount equal to the Monthly Principal Payment Amount for such Settlement Date and instead such amounts shall be payable on the following Settlement Payment Date:;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, (i) firstduring the Revolving Period with respect to each Dissenting Investor after the time its Commitment has been reduced to zero pursuant to Section 2.1(b)(iv), pro rata, an amount equal to its outstanding Capital until such Dissenting Investor’s Capital has been reduced to zero and (ii) during the Amortization Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(ix) NINTH, to the Deal Agent for the immediately preceding Interest Period account of the Lenders and the Backup Servicer, an amount equal to Increased Costs, any Additional Amounts and Indemnified Amounts (plusprovided that, if applicablewith respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) the amount of Servicing Fees payable for necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any prior Interest Period to the extent such amount has not been distributed to the Servicerdeposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days’ prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xii), plus, if applicable, .
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent As set forth in Section 6.03 are satisfied the Monthly Report, on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (or, following its assumption of control of Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on amounts on deposit in the Lock-Box Accounts, Collection Account from the Administrative Agent) shall, Collection Account and allocate and distribute such Collections amounts to the applicable Person in the following order of priority:
(i) FIRST, pari passu, (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, that each of if the parties hereto hereby acknowledge and agree that no Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses; (C) to the Backup Servicer, so long as it has not become the Successor Servicer hereunder, an amount equal to any accrued and unpaid InterestBackup Servicing Fee due in respect of such Payment Date, Fees or any unpaid Backup Servicing Fees owing as of Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the initial Settlement Date shall be payable on such Settlement Date Backup Servicer, and instead such amounts shall be payable on the following Settlement Date:
(i) first, any accrued and unpaid Indemnified Amounts owed to the Servicer for Backup Servicer; and (D) to the payment Collateral Agent, accrued and unpaid Collateral Agent Fee due in respect of the accrued Servicing Fees payable for the immediately preceding Interest Period (plussuch Payment Date, if applicable, the amount of Servicing Fees payable for any unpaid Collateral Agent Fee from any prior Interest Period Payment Date, any reasonable out-of-pocket expenses incurred by the Collateral Agent, and any accrued and unpaid Indemnified Amounts owed to the extent such amount has not been distributed Collateral Agent, in the case of clauses (i)(C) and (i)(D) prior to the Servicer)a Termination Event, up to Capped Backup Servicer and Collateral Agent Fees and Expenses, monthly;
(ii) secondSECOND, to each Lender and other Credit Party (ratablythe Lenders, based on pro rata, an amount equal to the amount then due and owing), all sum of any accrued and unpaid Interest, Fees (A) Yield and Breakage Fees (B) any Increased Costs and any Additional Amounts due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of Payment Date and any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for unpaid from any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPayment Date;
(iii) thirdTHIRD, as set forth to the Lenders, pro rata based upon the portion of such amounts owed to each such party, any Indemnified Amounts;
(iv) FOURTH, (A) during the Revolving Period, to the Principal Collection Account for application by the Borrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause (1) the Collateral Amount to at least equal the Minimum Collateral Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause the Adjusted Collateral Amount to equal the Minimum Collateral Amount, and (2) the Forecasted Collections to at least equal the Minimum Forecasted Collections Amount, and if the Minimum Forecasted Collections Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause the Adjusted Forecasted Collections to at least equal the Minimum Forecasted Collections Amount; and (B) during the Amortization Period, to the Lenders, pro rata, the Principal Distributable Amount, until Capital has been reduced to zero;
(v) FIFTH, during the Revolving Period, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(vi) SIXTH, pari passu, (A) to the Backup Servicer, any amounts owed to the Backup Servicer, to the extent not paid pursuant to clause (xi)(C) and (B) to the Collateral Agent, any accrued fees, reasonable out-of-pocket expenses or Indemnified Amounts to the extent not paid pursuant to clause (i)(D), in the case of clauses (yi)(C) or and (zi)(D), due to the Capped Backup Servicer and Collateral Agent Fees and Expenses;
(vii) belowSEVENTH, as applicable:to the Lenders for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(viii) EIGHTH, to the Borrower any remaining amounts.
(b) (2) If on any Payment Date the amount paid pursuant to Section 2.7(a)(ii) and (iv) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative AgentAgent 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 Borrower Seller or received in any Blocked Account, Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower Seller from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower Seller on such 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 “Release”), which Release constitutes payment of the Deferred Purchase Price with respect to such Receivables. On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box AccountsBlocked Account, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, prior to the occurrence of the Termination Date, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Yield Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent for distribution to each Lender and other Credit Party Group Agent ratably according to the aggregate outstanding Capital of each Purchaser in each such Group Agent’s Group (ratably, based on for the amount then due and owingbenefit of the relevant Purchasers in such Group Agent’s Group), all accrued and unpaid InterestYield, Fees and Breakage Fees due to such Lender Purchaser and other Credit Purchaser Party for the immediately preceding Interest Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such InterestYield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Yield Period to the extent such amount has not been distributed to such Lender Purchaser or Credit Purchaser Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Samples: Receivables Purchase Agreement (Computer Sciences Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (orshall instruct the Account Bank to pay, to the following its assumption Persons, from the Collection Account to the extent of control of Available Funds the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections following amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause the related Monthly Report: (xi) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances, to the extent not previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (yiii) or Third, pro rata (zA) belowto the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (other than Hedge Breakage Costs), and (B) to each Agent (based on amounts due to the members of each Lender Group pursuant to this subclause), for further payment to each related Lender, an amount equal to the sum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any related Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to each Agent (based on Lender Percentage) for further payment to each related Lender, the Monthly Principal Payment Amount; (vi) Sixth, if the Termination Date has not occurred but a Partial Expiration Event has occurred, pro rata to each Agent for a Lender Group that includes a Non-Extending Lender (based on the Loans Outstanding to each such Non- Extending Lender) for further payment to each related Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender's Invested Percentage as applicable:of its Commitment Termination Date times (B) all remaining Available Funds until
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (orOn each Payment Date, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian (which direction shall be deemed given upon receipt by the Collateral Custodian of the conditions precedent related Reporting Date Report) to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in Section 6.03 are satisfied on such dateReporting Date Report) to the following Persons, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the following order of priority; provided:
(1) to the Collateral Custodian and the Securities Intermediary pro rata, however, that each of the parties hereto hereby acknowledge and agree that no in an amount equal to any accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:Collateral Custodian Fees;
(i2) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicableHedge Counterparty, the aggregate net amount of Servicing Fees then due and payable for any prior Interest Period to the extent such amount has not been distributed to the ServicerHedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(ii3) to the Collateral Manager (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to pay any accrued and unpaid Collateral Management Fees and, second, to pay all documented fees and expenses of the Collateral Manager (including, without limitation, reasonable attorney’s fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the greater of (i) 0.20% of the aggregate outstanding principal value of all Eligible Loans and (ii) $250,000; provided that so long as CM Investment Partners LLC is Collateral Manager, such fee shall be waived until such time as IM directs the Custodian otherwise; [Investcorp] Loan and Security Agreement
(4) to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents;
(5) to the Administrative Agent to be distributed pro rata to each Lender Lender, in an amount equal to (a) any accrued and other Credit Party unpaid Interest with respect to Advances made by such Lender, (ratably, b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) to the Administrative Agent, to be distributed to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses of the Administrative Agent and the Lenders;
(9) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base Deficiency to zero, pro rata in accordance with the amount of Advances Outstanding hereunder;
(a) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (b) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(11) to the Administrative Agent to be distributed to the Administrative Agent, any applicable Lender, the Collateral Custodian and the Securities Intermediary, the Indemnified Parties, or the Secured Parties, as applicable, all other amounts then due and owing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement; and
(12) any remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments. [Investcorp] Loan and Security Agreement
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian and the Securities Intermediary, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and owingpayable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the extent not paid pursuant to Section 2.7(a), all to the Collateral Manager, in an amount equal to any accrued and unpaid InterestCollateral Management Fees;
(4) to the extent not paid pursuant to Section 2.7(a), Fees to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents;
(5) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Xxxxxx, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Fees due Costs;
(6) to such Lender and the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other Credit Party for the immediately preceding Interest Period unpaid amounts (including any additional Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts or indemnified amounts then due and payable to the Borrower under Sections 5.03 and 13.01 in respect of such paymentsapplicable Hedging Agreement;
(7) to the extent not paid pursuant to Section 2.7(a), plusto the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, to be distributed to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses of the Administrative Agent and the Lenders; [Investcorp] Loan and Security Agreement
(9) (x) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (y) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(10) (a) during the Revolving Period, to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, if applicablea Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base Deficiency to zero, pro rata in accordance with the amount of any such InterestAdvances Outstanding hereunder and (b) after the end of the Revolving Period, Fees and Breakage Fees to the Lenders to pay the Advances Outstanding;
(including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments11) payable for any prior Interest Period to the extent such amount has not been paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to the Administrative Agent, any applicable Lender, the Collateral Custodian, the Securities Intermediary, the Indemnified Parties, or the Secured Parties, all other amounts, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, any Increased Costs, Taxes, indemnities and fees or expenses of counsel, but other than the principal of Advances Outstanding, then due under this Agreement; and
(12) any remaining amounts shall be distributed to such Lender the Borrower or Credit Party;
(iii) thirdany nominee thereof, as set forth in clause (x)which amounts may be used by the Borrower to make Restricted Payments, (y) or (z) belowprovided, as applicable:that Borrower shall first reimburse the Collateral Manager for any unreimbursed amounts paid by the Collateral Manager on the Borrower’s behalf pursuant to this Agreement, to the extent not otherwise reimbursed hereunder.
Appears in 1 contract
Samples: Loan, Security and Collateral Management Agreement (Investcorp Credit Management BDC, Inc.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for On each Payment Date occurring prior to the benefit occurrence of a Default or Event of Default, the Secured Parties (orAccount Bank shall, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release Account Control Agreement and to the Borrower from extent of Available Funds for such Collections Payment Date and amounts on deposit in the amount (if any) necessary Expense Reserve Account and the Interest Reserve Account, pay to pay the purchase price for Receivables purchased by following Persons the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer Lender, an amount equal to any accrued and unpaid (1) Interest (plus any Unused Fee) for the payment related Interest Period, (2) all Indemnified Amounts then due and payable under this Agreement, and (3) all other Obligations (other than the Note Balance) then due under this Agreement;
(ii) second, pro rata, to pay (A) to the Custodian (x) any Custodian Fees and any taxes, costs, expenses, charges and other amounts (other than indemnities) which are then due and payable to the Custodian under or in connection with the Custodial Agreement as of such Payment Date and (y) any amounts in respect of indemnification claims that are not directly reimbursed by the Borrowers pursuant to the Custodial Agreement in an amount not to exceed $25,000 in the aggregate for so long as this Agreement is in effect, (B) to the Account Bank any fees, costs, expenses, charges and other amounts (other than indemnities) which are then due and payable to the Account Bank under or in connection with any Account Agreement as of such Payment Date and (C) to the Servicer, the accrued and unpaid Servicing Fee and expenses of the accrued Servicing Fees payable for Servicer (such expenses not to exceed $25,000 in the immediately preceding Interest Period aggregate in any calendar year);
(plusiii) third, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent Expense Reserve Account, any additional amounts required on such Payment Date to increase the Expense Reserve Account balance up to the Expense Reserve Required Balance on such Payment Date;
(iv) fourth, to the Interest Reserve Account, any additional amounts required on such Payment Date to increase the Interest Reserve Account balance up to the Interest Reserve Account Required Balance on such Payment Date;
(v) fifth, to the Lender, all remaining amounts to be applied to reduce the Note Balance to zero;
(vi) sixth, pro rata to pay (A) to the Custodian, any amounts in respect of indemnification claims that are not directly reimbursed by the Borrowers pursuant to the Custodial Agreement or reimbursed pursuant to clause second above; (B) to the Account Bank, any amounts in respect of indemnification claims that are not directly reimbursed by the Borrowers with respect to Account Bank’s duties and obligations under any Account Agreement; and (C) to the Servicer, any amounts in respect of fees and expenses not reimbursed pursuant to clause second above; and
(vii) seventh, any remaining amount has not been shall be distributed to the Servicer)Borrowers free and clear of any interest of the Lender.
(b) On or after the occurrence of a Default or Event of Default, all amounts deposited in the Collection Account and amounts on deposit in the Escrow Account, the Expense Reserve Account and the Interest Reserve Account shall be applied by Account Bank, on the Business Day next following the Business Day on which each amount is so deposited, in the following order of priority:
(i) first, to pay to the Lender an amount equal to any fees and expenses then due and payable from the Borrowers to the Lender under the Transaction Documents;
(ii) second, to each pay to the Lender and other Credit Party (ratably, based on an amount equal to the amount then due and owing), all Interest accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in with respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPrincipal Amount of all Loans outstanding;
(iii) third, as set forth in clause to pay to the Lender an amount equal to all Indemnified Amounts then due and payable from the Borrowers to the Lender under the Transactions Documents;
(iv) fourth, pro rata, to pay (A) to the Custodian (x)) any Custodian Fees and any taxes, costs, expenses, charges and other amounts (other than indemnities) which are then due and payable to the Custodian under or in connection with the Custodial Agreement and (y) any amounts in respect of indemnification claims that are not directly reimbursed by the Borrowers pursuant to the Custodial Agreement in an amount not to exceed $25,000 in the aggregate for so long as this Agreement is in effect, and (B) to the Account Bank any fees, costs, expenses, charges and other amounts (other than indemnities) which are then due and payable to the Account Bank under or in connection with any Account Agreement and (C) to the Servicer, the accrued and unpaid Servicing Fee and the expenses of the Servicer (such expenses not to exceed $25,000 in the aggregate in any calendar year);
(v) fifth, to the Lender, to reduce the Note Balance to zero; and
(vi) sixth, pro rata to pay (A) to the Custodian, any amounts in respect of indemnification claims that are not directly reimbursed by the Borrowers pursuant to the Custodial Agreement or reimbursed pursuant to clause fourth above; (B) to the Account Bank, any amounts in respect of indemnification claims that are not directly reimbursed by the Borrowers with respect to Account Bank’s duties and obligations under any Account Agreement and (C) to the Servicer, any amounts in respect of fees and expenses not reimbursed pursuant to clause fourth above.
(c) If on any date a Borrowing Base Deficiency exists, then no later than three (3) Business Days after the earlier of receipt by the Borrowers of notice thereof from the Lender or knowledge thereof by the Borrowers, the Borrowers shall (i) transfer, in immediately available funds, to Lender an amount to be applied to reduce the outstanding Note Balance, or (zii) belowif acceptable to the Lender (in its sole discretion) pledge additional Eligible Tax Liens for no additional consideration, as applicable:in each case, such that after giving effect to such transfers, no Borrowing Base Deficiency exists.
Appears in 1 contract
Samples: Tax Lien Loan and Security Agreement (Encore Capital Group Inc)
Settlement Procedures. (a) The Servicer On each Deposit Date during each Fixed Period during the Revolving Period, unless a Cure Period shall set aside have occurred and be continuing, the Collection Agent shall instruct the Trustee in a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at such time and in the following order:
(i) [Intentionally Omitted]
(ii) out of the related Collections, allocate to, and hold in the Trustee's Account, in trust for the benefit of Beneficiaries and the Secured Parties (or, if so requested by the Administrative Collection Agent, segregate an amount equal to the sum of (x) the Yield/Fee Amount for each Fixed Period commencing on or before such Deposit Date, plus (y) during the Term Period for any Group, the Excess Interest accrued through such Deposit Date in a separate account designated by respect of all Cash Secured Advances, in each case to the Administrative Agent, which shall be an account maintained and controlled by extent the Administrative Agent unless same has not been previously so allocated; and
(iii) deposit to the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with Borrower's Account the priority remainder of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Accountsuch Collections; provided, however, that the portion of the amounts allocable to the Trustee's expenses and held in the Trustee's Account shall only be in an amount equal to the unpaid expenses and disbursements owed or reimbursable under the Transaction Documents actually incurred by the Trustee (as certified in reasonable detail to the Collection Agent in writing by the Trustee) during the Fixed Period ending on the last day of the most recent Month or remaining unpaid with respect to any prior Fixed Period. The Daily Report delivered by the Collection Agent to the Trustee on the first day of each Fixed Period shall set forth the Yield/Fee Amount for such Fixed Period and during the Term Period for any Group, the estimated Excess Interest for such Fixed Period.
(b) On each Deposit Date during each Fixed Period if and so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such datea Cure Period shall have occurred and be continuing, the Servicer may release Collection Agent shall instruct the Trustee by a Daily Report delivered to the Borrower from such Collections Trustee by 12:00 noon (New York City time) to, and the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) Trustee shall, distribute such Collections at that time and in the following order order:
(i) [Intentionally Omitted]
(ii) out of prioritythe related Collections, allocate to, and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, an amount equal to the sum of (x) the Yield/Fee Amount for each Fixed Period commencing on or before such Deposit Date, plus (y) during the Term Period for any Group, the Excess Interest accrued through such Deposit Date in respect of all Cash Secured Advances, in each case to the extent the same has not been previously so allocated;
(iii) deposit, out of the remainder of such Collections, to the Cure Account an amount sufficient to make the Facility Principal (less an amount equal to the Cure Funds then in the Cure Account) equal the Borrowing Base; and
(iv) deposit to the Borrower's Account the remainder of such Collections; provided, however, that each the portion of the parties hereto hereby acknowledge amounts allocable to the Trustee's expenses and agree that no accrued held in the Trustee's Account shall only be in an amount equal to the unpaid expenses and unpaid Interest, Fees disbursements owed or Servicing Fees owing reimbursable under the Transaction Documents actually incurred by the Trustee (as certified to the Collection Agent in writing by the Trustee) during the Fixed Period ending on the last day of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable most recent Month or remaining unpaid with respect to any prior Fixed Period. The Daily Report delivered by the Collection Agent to the Trustee on the first day of each Fixed Period shall set forth the Yield/Fee Amount for such Fixed Period and during the Term Period for any Group, the estimated Excess Interest for such Fixed Period.
(c) On each Deposit Date during the Amortization Period, the Collection Agent shall instruct the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at that time and in the following Settlement Dateorder:
(i) first[Intentionally Omitted]
(ii) set aside and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, all of the relevant Collections until payment in full of the Obligations; and
(iii) deposit to the Servicer Borrower's Account the remainder of such Collections.
(d) On any Business Day during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Borrower may instruct the Collection Agent to direct the Trustee (as set forth in the Daily Report) to hold in the Trustee's Account all or a portion of the Collections otherwise to be deposited into the Borrower's Account pursuant to Section 2.04(a)(iii).
(e) On any Business Day during the Revolving Period, the Borrower may instruct the Trustee by an officer's certificate delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall transfer to the Borrower's Account Cure Funds, if any, held in the Cure Account; provided that the officer's certificate delivered by the Seller to the Trustee at the time of such request shall state that, after taking account of such requested withdrawal, the Borrowing Base on such day is equal to or greater than the Facility Principal (less an amount equal to the Cure Funds then in the Cure Account) and shall set forth the calculation supporting such statement. Further, upon at least two Business Days' prior notice to the Investor Agents and the Trustee, the Borrower may, on any Business Day during the Revolving Period (but, in no event more than once in any calendar week after taking into consideration any payment made pursuant to the first clause of Section 2.04A(a)(iv)), instruct the Trustee by an officer's certificate delivered to the Trustee by 12:00 noon (New York City time) to distribute Cure Funds in the Cure Account, and the Trustee shall transfer from the Cure Account to the Investor Agent's Accounts for the ratable payment of the accrued Servicing Fees payable for Facility Principal to the immediately preceding Interest Period (plus, if applicablerelevant Investors and Banks, the amount set forth in such certificate.
(f) For the purposes of Servicing Fees payable for this Section 2.04:
(i) if on any prior Interest Period day any Receivable or any Participated Receivable becomes (in whole or in part) a Diluted Receivable, the Borrower shall be deemed to have received on such day a Collection of such Receivable or Participated Receivable in the extent amount of such Diluted Receivable and the amount has not been distributed to the Servicerof such deemed Collection shall be allocated in accordance with Section 2.04(a), (b) or (c), as applicable;
(ii) secondif on any day any of the representations or warranties contained in Section 4.01(h) is no longer true with respect to any Receivable or any Participated Receivable, the Borrower shall be deemed to each Lender and other Credit Party (ratably, based have received on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect day a Collection of such payments), plus, if applicable, Receivable or Participated Receivable in full and the amount of any such Interestdeemed Collection shall be allocated in accordance with Section 2.04(a), Fees and Breakage Fees (including any additional amounts b) or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party(c), as applicable;
(iii) thirdexcept as provided in subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivables or any Participated Receivable shall be applied to the Receivables or Participated Receivable of such Obligor in the order of the age of such Receivables or Participated Receivable, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables or Participated Receivable; 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 Borrower 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 Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) To the extent that the amounts deposited to the Trustee's Account with respect to any Fixed Period are insufficient to pay all the accrued but unpaid Yield, Fees, Excess Interest, Trustee's Fee, Trustee's expenses and (if payable to a Collection Agent other than an Originator or one of its Affiliates) Collection Agent Fee, the Borrower shall be obligated to pay to the Investor Agents and/or Program Agent, as the case may be, on the last day of such Fixed Period, for the account of the Investors, the Banks, the Investor Agents and the Program Agent and the Trustee (and the Collection Agent, if applicable), an amount equal to the balance of such accrued and unpaid amounts by deposit of such amount to the Trustee's Account. The Trustee shall distribute such funds as set forth in clause (x), (ySection 2.04A(a) or (z) belowb), as applicable:.
(h) Within one Business Day after the end of each Fixed Period in respect of which Yield is computed by reference to the Investor Rate, each Investor Agent shall furnish the Borrower and the Collection Agent with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such Fixed Period with respect to the unpaid Advances held by the Investors and the Banks in such Investor Agent's Group.
Appears in 1 contract
Settlement Procedures. (a) The Servicer On each Payment Date, the Collateral Agent shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to the Backup Servicer 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, that each 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 parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (B) the Program Fee, and (C) the Unused 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 initial Settlement Date shall be payable on Lenders, an amount equal to the Monthly Principal Payment Amount for such Settlement Date and instead such amounts shall be payable on Payment Date;
(vi) SIXTH, to any Successor Servicer, to the following Settlement Date:extent not already paid pursuant to clause THIRD above an amount equal to Reliening Expenses;
(vii) SEVENTH, (i) firstduring the Revolving Period with respect to each Dissenting Investor after the time its Commitment has been reduced to zero pursuant to Section 2.1(b)(iv), pro rata, an amount equal to its outstanding Capital until such Dissenting Investor’s Capital has been reduced to zero and (ii) during the Amortization Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(viii) EIGHTH, to the Deal Agent for the immediately preceding Interest Period account of the Lenders and the Backup Servicer, an amount equal to, without double counting, Increased Costs, any Additional Amounts and Indemnified Amounts (plusprovided that, if applicablewith respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD 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 of Servicing Fees payable for necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any prior Interest Period to the extent such amount has not been distributed to the Servicerdeposits made in subclause (A));
(iix) secondTENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause THIRD above and any such Servicing Fee unpaid from any prior Payment Date;
(xi) ELEVENTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(xii) TWELFTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days' prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xi).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(iv) and (vii) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, plus, if applicablea “Reserve Advance”) and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Deal Agent for payment to the Lenders.
(ii) If on any Payment Date during the Amortization Period, the amount paid pursuant to Section 2.7(a)(vii) is insufficient to reduce Capital to zero, the Deal Agent, in its sole discretion, may direct the Collateral Agent to withdraw any or all of any the amount on deposit in the Reserve Account, and pay such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period amount to the extent such amount has not been distributed Deal Agent, for payment to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, the Collateral Agent shall (based solely on the information set aside forth in the Monthly Report delivered on the related Determination Date) withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person in the following order of payments set forth belowpriority:
(i) FIRST, all Collections on Pool Receivables that are received to the Collateral Agent and 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable and documented out-of-pocket expenses incurred by the Backup Servicer or and the Collateral Agent, and any accrued and unpaid Indemnified Amounts owed by the Borrower or received in any Lock-Box Accountto the Backup Servicer and the Collateral Agent; provided, however, that so long as solely prior to an Event of Default occurring, the amount of any such expenses and Indemnified Amounts shall be in an aggregate amount up to $17,000 per month;
(ii) SECOND, (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;
(iii) THIRD, on a pro rata basis, to each Class A Managing Agent (for the account of the conditions precedent set forth applicable Class A Lenders in Section 6.03 are satisfied on such dateits related Class A Lender Group), the Servicer may release an amount equal to the Borrower sum of all accrued and unpaid Capped Interest, Class A Program Fees and Class A Unused Fees due the Class A Lenders in its related Class A Lender Group in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(iv) FOURTH, on a pro rata basis, to each Class B Managing Agent (for the account of the applicable Class B Lenders in its related Class B Lender Group), an amount equal to the sum of all accrued and unpaid Capped Interest, Class B Program Fees and Class B Unused Fees due the Class B Lenders in its related Class B Lender Group in respect of such Collections Payment Date and any such amounts unpaid from any prior Payment Date;
(v) FIFTH, during the Revolving Period, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) the amount (if any) necessary to pay cause the purchase price amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(vi) SIXTH, during the Revolving Period, on a pro rata basis, to each Class A Managing Agent (for Receivables purchased by the Borrower on such date in accordance with the terms account of the Purchase applicable Class A Lenders in its related Class A Lender Group), an amount equal to the product of (i) the Class A Monthly Principal Amount for such Payment Date and Sale Agreement (ii) the Class A Lender Group Percentage for such Class A Managing Agent’s Class A Lender Group;
(vii) SEVENTH, during the Revolving Period, on a pro rata basis, to each such release, a “Release”). On each Settlement Date, Class B Managing Agent (for the Servicer (or, following its assumption of control account of the Lock-Box Accountsapplicable Class B Lenders in its related Class A Lender Group), an amount equal to the Administrative product of (i) the Class B Monthly Principal Amount for such Payment Date and (ii) the Class B Lender Group Percentage for such Class B Managing Agent’s Class B Lender Group;
(viii) shallEIGHTH, distribute during the Amortization Period, on a pro rata basis, to each Class A Managing Agent (for the account of the applicable Class A Lenders in its related Class A Lender Group), an amount equal to the product of (i) the Class A Aggregate Loan Amount and (ii) the Class A Lender Group Percentage for such Collections Class A Managing Agent’s Class A Lender Group, until the Class A Aggregate Loan Amount has been reduced to zero;
(ix) NINTH, during the Amortization Period, on a pro rata basis, to each Class B Managing Agent (for the account of the applicable Class B Lenders in its related Class B Lender Group), an amount equal to the product of (i) the Class B Aggregate Loan Amount and (ii) the Class B Lender Group Percentage for such Class B Managing Agent’s Class B Lender Group, until the Class B Aggregate Loan Amount has been reduced to zero;
(x) TENTH, (1) first, to each Class A Managing Agent (for the account of the applicable Class A Lenders in its related Class A Lender Group), any Interest not paid to the Class A Lenders in its related Class A Lender Group pursuant to clause THIRD above in respect of such Payment Date and (2) second, to each Class B Managing Agent (for the account of the applicable Class B Lenders in its related Class B Lender Group), any Interest not paid to the Class B Lenders in its related Class B Lender Group pursuant to clause FOURTH above in respect of such Payment Date;
(xi) ELEVENTH, if any Increased Costs, Additional Amounts or Indemnified Amounts (other than any such amounts payable pursuant to FIRST through TENTH above) are then due and payable, in the following order of priority, (x) first, on a pro rata basis, to the Deal Agent, each Class A Managing Agent, each Class A Lender, each applicable Liquidity Provider with respect to a Conduit Lender that is a Class A Lender, the Backup Servicer and any Successor Servicer, an amount equal to any Increased Costs, Additional Amounts and Indemnified Amounts due any such Person in respect of such Payment Date and any such amounts unpaid from any prior Payment Date and (y) second, on a pro rata basis, to each Class B Managing Agent, Class B Lender and each applicable Liquidity Provider with respect to a Conduit Lender that is a Class B Lender, an amount equal to any Increased Costs, Additional Amounts and Indemnified Amounts due any such Person in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(xii) TWELFTH, to the Backup Servicer and the Collateral Agent, any expenses and Indemnified Amounts not paid pursuant to clause FIRST above;
(xiii) THIRTEENTH, to the Backup Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause SECOND above and any such Servicing Fee unpaid from any prior Payment Date;
(xiv) FOURTEENTH, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; providedand
(xv) FIFTEENTH, howeverto the Borrower any remaining amounts. Each Managing Agent shall distribute all payments received by it pursuant to Section 2.6(a) to the Lenders in its related Lender Group as follows: (i) in the case of Interest, that Program Fees and Unused Fees, to the respective Lenders in its Lender Group ratably based on the amounts due and payable to each such Lender and (ii) in the case of principal, as such Managing Agent determines in consultation with the Lenders in such Lender Group.
(b) Prior to the Amortization Period, one (1) Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon prior written notice to each Managing Agent and two (2) Business Days’ prior written request of the parties hereto hereby acknowledge and agree that no accrued and unpaid InterestBorrower, Fees or Servicing Fees owing as withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount pursuant to written direction from the Borrower to each Managing Agent (for the account of the initial Settlement Lenders in its related Lender Group), ratably based on the aggregate of the Invested Percentages of the Lenders in such Managing Agent’s related Lender Group, to be distributed by each Managing Agent to the Lenders in its related Lender Group (as determined by such Managing Agent in consultation with the Lenders in such Lender Group), as a payment in reduction of the portion of the Aggregate Loan Amount funded or maintained by the Lenders in such Lender Group. Notwithstanding anything in this Section 2.6(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or make any such distribution until a Responsible Officer of the Servicer or a representative of the Servicer designated by a Responsible Officer of the Servicer has certified to the Collateral Agent, the Deal Agent and each Managing Agent in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Sections 2.6(a)(i) through (xiv).
(d) If on any Payment Date shall be payable (before giving effect to any Reserve Advance on such Settlement Date Payment Date) the amounts paid pursuant to Sections 2.6(a)(iii), (iv), (vi) and instead (vii) are insufficient to cover all amounts due thereunder on such amounts Payment Date, the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account to be payable on the following Settlement included in Available Funds for such Payment Date:.
(i) firstIf on any Payment Date during the Amortization Period, the amounts paid pursuant to Section 2.6(a)(viii) and (ix) are insufficient to reduce the Class A Aggregate Loan Amount and the Class B Aggregate Loan Amount, respectively, to zero, the Servicer for Deal Agent (acting at the payment direction, or with the consent, of the accrued Servicing Fees payable for Required Lenders acting in their respective sole discretion) may direct the immediately preceding Interest Period (plus, if applicable, Collateral Agent to withdraw any or all of the amount of Servicing Fees payable for any prior Interest Period to on deposit in the extent Reserve Account, and pay such amount has not been distributed to in the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect order of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as priority set forth in clause Section 2.6(a)(viii) and (xix), (y) or (z) below, as applicable:.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Administrator shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set aside forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the Collateral Custodian, in an amount equal to any accrued and hold unpaid Collateral Custodian Fees;
(2) to the Collateral Administrator, in trust for the benefit of the Secured Parties an amount equal to any accrued and unpaid Collateral Administration Fees;
(or3) pro rata to each Lender, if so requested by in an amount equal to any accrued and unpaid Interest;
(4) pro rata to (a) each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee and Breakage Costs and (b) to the Administrative Agent, segregate any applicable Lender, the Collateral Custodian, the Affected Parties, the Indemnified Parties, or the Secured Parties, as applicable, all Fees and other amounts, including any Increased Costs, but other than the principal of Advances Outstanding, then due under this Agreement;
(5) pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero, pro rata in accordance with the amount of Advances Outstanding hereunder;
(6) to the applicable party, to pay all other Administrative Expenses;
(7) to the applicable Governmental Authority, any Tax or withholding Tax which, if not paid, could result in a separate account designated by Lien on the assets of the Borrower; and
(8) any remaining amounts shall be distributed to the Borrower.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Administrator shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Collateral Administrator, in an amount equal to any accrued and unpaid Collateral Administration Fees;
(3) to the extent not paid pursuant to Section 2.7(a), pro rata to each Lender, in an amount equal to any accrued and unpaid Interest;
(4) to the extent not paid pursuant to Section 2.7(a), pro rata to (a) each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee and Breakage Costs and (b) to the Administrative Agent, which shall be an account maintained and controlled by any applicable Lender, the Administrative Agent unless Collateral Custodian, the Administrative Agent otherwise instructs in its sole discretionAffected Parties, the Indemnified Parties, or the Secured Parties, all other amounts, including any Increased Costs, but other than the principal of Advances Outstanding, then due under this Agreement;
(5) to the extent not paid pursuant to Section 2.7(a), for application pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero, pro rata in accordance with the priority amount of payments Advances Outstanding hereunder;
(6) during the Revolving Period, as directed by the Collateral Administrator, to repay Advances Outstanding, return cash to the Principal Collections Account and/or to be paid to the Borrower;
(7) after the end of the Revolving Period, to the Borrower in an amount sufficient to pay when due any Tax arising from Gains (including as a result of market discount) incurred prior to the SPV Merger Date (A) in respect of which no distribution has previously been made pursuant to this Section 2.7(b)(7) and (B) not subject to Independent Verification, calculated in accordance with the assumptions set forth below, all Collections on Pool Receivables that are received by in Section 6.5 of the Servicer or AIV Limited Partnership Agreement as of the Borrower or received in any Lock-Box Accountdate hereof; provided, however, that so long as each the aggregate amount of such Gains for purposes of such calculation shall be net of any losses of the conditions precedent set forth Borrower or of the AIV, against which such Gains can be offset for tax purposes as of the date of such determination (including any losses from prior periods after the Revolving Period which were not utilized to offset Gains in such prior period);
(8) after the end of the Revolving Period, to the Lenders to pay the Advances Outstanding;
(9) to the extent not paid pursuant to Section 6.03 are satisfied 2.7(a), to the applicable party to pay all other Administrative Expenses;
(10) to the extent not paid pursuant to Section 2.7(b)(7), to the applicable Governmental Authority, any Tax or withholding Tax which, if not paid, could result in a Lien on such datethe assets of the Borrower; and
(11) any remaining amounts shall be distributed to the Borrower.
(c) The Collateral Administrator may, in its sole discretion, direct the Servicer may release Collateral Custodian to make a payment to the Borrower from such Collections the Principal Collection Account on any Business Day other than a Payment Date.
(d) On each Borrowing Base Certificate delivered on any Payment Date where a distribution is requested pursuant to Section 2.7(b)(7), the Borrower shall set forth an itemized computation of the amount which would be distributed pursuant to Section 2.7(b)(7) (if anyassuming sufficient Available Funds after distributions per Section 2.7(b)(1)-(6)) necessary to pay the purchase price for Receivables purchased by the Borrower on including calculation in reasonable detail regarding each component of such date in accordance with the terms of the Purchase calculation as set forth herein and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order related Borrowing Base Certificate. Such Borrowing Base Certificate shall set forth the amount of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on Gains (minus any such Settlement Date and instead Gains for which a distribution has previously been made pursuant to Section 2.7(b)(7)) pursuant to which such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicableBorrowing Base Certificate is being delivered, the amount of Servicing Fees payable for any prior Interest Period losses of the Borrower and the AIV available to offset such Gains, the applicable tax rates used in calculating such Taxes, and all other factors used to calculate such Tax. Upon at least one (1) Business Day’s notice to the extent such amount has not been distributed Borrower and the Collateral Custodian prior to the Servicerrelevant Payment Date, the Administrative Agent may request independent verification of the inputs and calculations set forth in such Borrowing Base Certificate from an independent accounting firm (an “Independent Verification”);
, selected by the Administrative Agent, and reasonably acceptable to the Borrower and the AIV. Such accounting firm shall be required to provide such verification within thirty (ii30) seconddays of its engagement, to each Lender and other Credit Party (ratably, based the determination of such accounting firm shall be final and binding on all parties. During the verification procedure the Collateral Custodian shall hold all Available Funds otherwise distributable on the amount then due Payment Date pursuant to Section 2.7(b)(7) in escrow for distribution as soon as such verification is finalized. All parties to this Agreement shall cooperate fully with such accounting firm and owing)provide, subject to confidentiality arrangements, all accrued information and unpaid Interestdata requested by such accounting firm. The fee for such accounting firm’s verification shall be borne by the Administrative Agent, Fees and Breakage Fees due to such Lender and other Credit Party for unless the immediately preceding Interest Period determination concludes that there is a five (including any additional amounts 5) percent or indemnified amounts payable under Sections 5.03 and 13.01 greater overstatement in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as distribution set forth in clause (x)such Borrowing Base Certificate, (y) or (z) below, in which case the fee will be borne by the Borrower and treated as applicable:an Administrative Expense.
Appears in 1 contract
Samples: Loan and Security Agreement (New Mountain Finance Corp)
Settlement Procedures. (a) The Servicer Unless a Termination Date shall set aside and hold in trust for the benefit of the Secured Parties (orhave occurred pursuant to Section 10.2, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer Collateral Agent shall (or, following its assumption of control of based on the Lock-Box Accounts, information contained in the Administrative AgentMonthly Report delivered on the related Determination Date) shall, withdraw Available Funds and any Excess Reserve Amounts and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such Collections amounts to the applicable Person or account in the following order of priority:
(i) FIRST, pari passu, (A) (1) 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, that each of if the parties hereto hereby acknowledge and agree that no Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee, (2) to the Backup Servicer, so long as it has not become the Successor Servicer hereunder, an amount equal to any accrued and unpaid InterestBackup Servicing Fee due in respect of such Payment Date, Fees or any unpaid Backup Servicing Fees owing as Fee from any prior Payment Date and (3) to the Collateral Agent, accrued and unpaid Collateral Agent Fee due in respect of such Payment Date, any unpaid Collateral Agent Fee from any prior Payment Date; (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses; (C) to the Backup Servicer, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed to the Backup Servicer; and (D) to the Collateral Agent, any reasonable out-of-pocket expenses incurred by the Collateral Agent, and any accrued and unpaid Indemnified Amounts owed to the Collateral Agent, in the case of clauses (i)(C) and (i)(D) prior to a Termination Event, up to Capped Backup Servicer and Collateral Agent Expenses, monthly;
(ii) SECOND, the following amounts to be applied sequentially (A) first, pro rata to each Class A Lender, such Class A Lender’s ratable share of the initial Settlement Date shall be Class A Interest Distributable Amount due and payable on such Settlement Payment Date and instead the Class A Interest Carryover Shortfall, if any, from any prior Payment Date, (B) second, pro rata to each Class B Lender, such Class B Lender’s ratable share of the Class B Interest Distributable Amount due and payable on such Payment Date and the Class B Interest Carryover Shortfall, if any, from any prior Payment Date and (C) third, pro rata to each Class C Lender, such Class C Lender’s ratable share of the Class C Interest Distributable Amount due and payable on such Payment Date and the Class C Interest Carryover Shortfall, if any, from any prior Payment Date;
(iii) THIRD, during the Revolving Period, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iv) FOURTH, during the Revolving Period, to the Principal Collection Account for application by the Borrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause (1) the Collateral Amount to at least equal the Minimum Collateral Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause the Adjusted Collateral Amount to at least equal the Minimum Collateral Amount and (2) the Forecasted Collections to at least equal the Minimum Forecasted Collections Amount, and if the Minimum Forecasted Collections Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause the Adjusted Forecasted Collections to at least equal the Minimum Forecasted Collections Amount;
(v) FIFTH, during the Amortization Period, the following amounts to be applied sequentially (A) first, pro rata to each Class A Lender, such Class A Lender’s ratable share of the Class A Principal Distributable Amount until the Class A Loan Balance has been reduced to zero, (B) second, pro rata to each Class B Lender, such Class B Lender’s ratable share of the Class B Principal Distributable Amount until the Class B Loan Balance has been reduced to zero and (C) third, pro rata to each Class C Lender, such Class C Lender’s ratable share of the Class C Principal Distributable Amount until the Class C Loan Balance has been reduced to zero;
(vi) SIXTH, pari passu, (A) the following amounts to be applied sequentially (1) first, pro rata to each Class A Lender, such Class A Lender’s ratable share of the sum of any accrued and unpaid Increased Costs, Additional Amounts and Indemnified Amounts due and owing to such Class A Lender in respect of such Payment Date and any such amounts from any prior Payment Date, (2) second, pro rata to each Class B Lender, such Class B Lender’s ratable share of the sum of any accrued and unpaid Increased Costs, Additional Amounts and Indemnified Amounts due and owing to such Class B Lender in respect of such Payment Date and any such amounts from any prior Payment Date, and (3) third, pro rata to each Class C Lender, such Class C Lender’s ratable share of the sum of any accrued and unpaid Increased Costs, Additional Amounts and Indemnified Amounts due and owing to such Class C Lender in respect of such Payment Date and any such amounts from any prior Payment Date; (B) to the Backup Servicer, any amounts owed to the Backup Servicer to the extent not paid pursuant to clause (i)(C) above due to the Capped Backup Servicer and Collateral Agent Expenses; and (C) to the Collateral Agent, any amounts owed to the Collateral Agent to the extent not paid pursuant to clause (i)(D) above due to the Capped Backup Servicer and Collateral Agent Expenses;
(vii) SEVENTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Term Loan Balance) until paid in full; and
(viii) EIGHTH, to the Borrower any remaining amounts.
(b) If a Termination Date has occurred pursuant to Section 10.2, on each Payment Date after such Termination Date, the Collateral Agent shall be payable (based on the information contained in the Monthly Report delivered on the related Determination Date) withdraw Available Funds and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person or account in the following Settlement Dateorder of priority:
(i) firstFIRST, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period pari passu, (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed A) (1) 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, (2) to the Backup Servicer, so long as it has not become the Successor Servicer hereunder, an amount equal to any accrued and unpaid Backup Servicing Fee due in respect of such Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date and (3) to the Collateral Agent, accrued and unpaid Collateral Agent Fee due in respect of such Payment Date, any unpaid Collateral Agent Fee from any prior Payment Date; (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses; (C) to the Backup Servicer, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed to the Backup Servicer; and (D) to the Collateral Agent, any reasonable out-of-pocket expenses incurred by the Collateral Agent, and any accrued and unpaid Indemnified Amounts owed to the Collateral Agent;
(ii) SECOND, the following amounts to be applied sequentially (A) first, pro rata to each Class A Lender, such Class A Lender’s ratable share of the Class A Interest Distributable Amount due and payable on such Payment Date and the Class A Interest Carryover Shortfall, if any, from any prior Payment Date, (B) second, pro rata to each Class A Lender, such Class A Lender’s ratable share of the Class A Principal Distributable Amount until the Class A Loan Balance has been reduced to zero, (C) third, pro rata to each Class B Lender, such Class B Lender’s ratable share of the Class B Interest Distributable Amount due and payable on such Payment Date and the Class B Interest Carryover Shortfall, if any, from any prior Payment Date, (D) fourth, pro rata to each Class B Lender, such Class B Lender’s ratable share of the Class B Principal Distributable Amount until the Class B Loan Balance has been reduced to zero, (E) fifth, to each Lender and other Credit Party (ratablyClass C Lender, based on such Class C Lender’s ratable share of the amount then Class C Interest Distributable Amount due and owing), all accrued payable on such Payment Date and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Class C Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plusCarryover Shortfall, if applicableany, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for from any prior Interest Period Payment Date and (F) sixth, pro rata to each Class C Lender, such Class C Lender’s ratable share of the extent such amount Class C Principal Distributable Amount until the Class C Loan Balance has not been distributed reduced to such Lender or Credit Partyzero;
(iii) THIRD, the following amounts to be applied sequentially (A) first, pro rata to each Class A Lender, such Class A Lender’s ratable share of the sum of any accrued and unpaid Increased Costs, Additional Amounts and Indemnified Amounts due and owing to such Class A Lender in respect of such Payment Date and any such amounts from any prior Payment Date, (B) second, pro rata to each Class B Lender, such Class B Lender’s ratable share of the sum of any accrued and unpaid Increased Costs, Additional Amounts and Indemnified Amounts due and owing to such Class B Lender in respect of such Payment Date and any such amounts from any prior Payment Date, and (C) third, as set forth pro rata to each Class C Lender, such Class C Lender’s ratable share of the sum of any accrued and unpaid Increased Costs, Additional Amounts and Indemnified Amounts due and owing to such Class C Lender in clause respect of such Payment Date and any such amounts from any prior Payment Date;
(xiv) FOURTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids until paid in full; and
(v) FIFTH, to the Borrower any remaining amounts.
(c) (i) If on any Payment Date there are not sufficient Available Funds to pay all amounts required to be paid pursuant to Section 2.7(a)(ii), the Collateral Agent shall (ybased on the information contained in the Monthly Report delivered on the related Determination Date) withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account.
(i) If on any Payment Date during the Amortization Period, the amount paid pursuant to Section 2.7(a)(v) or (z) belowSection 2.7(b)(ii), as applicable:, is insufficient to reduce the Aggregate Term Loan Balance to zero, the Deal Agent (acting at the direction, or with the consent, of the Required Lenders) may direct the Collateral Agent to withdraw any or all of the amount on deposit in the Reserve Account, and pay such amount to the Lenders in accordance with Section 2.7(a)(v) or Section 2.7(b)(ii), as applicable.
(d) With respect to any payments made by the Collateral Agent to the Lenders, the Collateral Agent shall be entitled to rely conclusively on the Monthly Report for purposes of determining the identity of such Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, the Borrower (or at all times after the occurrence and continuance of a Termination Event, the Collateral Agent) shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person in the following order of payments set forth belowpriority:
(i) First, all Collections on Pool Receivables that are received to the Hedge Counterparty, an amount equal to any Hedge Costs (exclusive of termination payments) and any such Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date;
(ii) Second, [Reserved];
(iii) Third, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Servicer or Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower or received to Xxxxx Fargo in any Lock-Box Accountan aggregate amount up to $17,000 per month (the “Cap”); provided, however, that so long as each in the event of the conditions precedent set forth in an acceleration resulting from a Termination Event specified under Section 6.03 are satisfied on 9.1(e)(i) or Section 9.1(g) hereunder, such dateCap will not apply;
(iv) Fourth, the Servicer may release (A) to the Borrower Servicer, an amount equal to any accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement any prior Payment Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each 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;
(v) Fifth, to the Lenders, ratably, an amount equal to the sum of the parties hereto hereby acknowledge and agree that no any accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(iA) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees Costs, (B) Program Fee, and (C) Unused Fee due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date and any such amounts unpaid from any prior Payment Date;
(vi) Sixth, during the Revolving Period, to the Lenders, ratably (based on the outstanding principal amount of the Revolving Loans of each Lender), plusan amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) Seventh, if applicableto any Successor Servicer, an amount equal to Reliening Expenses;
(viii) Eighth, during the Amortization Period, to the Lenders, ratably (based on the outstanding principal amount of the Revolving Loans of each Lender), the Additional Principal Payment Amount, until the Aggregate Loan Amount has been reduced to zero;
(ix) Ninth, ratably to the Lenders and the Backup Servicer, an amount of equal to Increased Costs, any Additional Amounts and Indemnified Amounts (provided that, with respect to the Backup Servicer, such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause Third above) due in respect of such payments) payable for Payment Date and unpaid from any prior Interest Period Payment Date;
(x) Tenth, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A)) and (C) at the election of the Borrower (or the Servicer, on its behalf), an amount up to the Excess Reserve Maximum Amount;
(xi) Eleventh, to the Backup Servicer, if it has become the Successor Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause Fourth above and any such amount has not been distributed to such Lender or Credit PartyServicing Fee unpaid from any prior Payment Date;
(iiixii) thirdTwelfth, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) Thirteenth, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as set forth a payment in clause reduction of the portion of the Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (xwhich shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, the Borrower (y) or (z) belowthe Collateral Agent, as applicable:) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or the Collateral Agent, as applicable) shall pay such amount ratably to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. On each Payment Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person in the following order of payments set forth belowpriority:
(i) FIRST, all Collections on Pool Receivables that are received to the Hedge Counterparty, an amount equal to any Hedge Costs (exclusive of termination payments) and any such 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Servicer or Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower or received to the Backup Servicer in any Lock-Box Accountan aggregate amount up to $17,000 per month (the “Cap”); provided, however, that so long as each in the event of the conditions precedent set forth in an acceleration resulting from a Termination Event specified under Section 6.03 are satisfied on 10.1(d)(i) or Section 10.1(f) hereunder, such dateCap will not apply;
(iii) THIRD, the Servicer may release (A) to the Borrower Servicer, an amount equal to any accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement any prior Payment Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each 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 parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (B) Program Fee, and (C) Unused Fee, Increased Costs and any Additional Amounts due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(iv) firstFIFTH, during the Revolving Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, an amount equal to the Monthly Principal Payment Amount for the immediately preceding Interest Period such Payment Date;
(plusvi) SIXTH, if applicableto any Successor Servicer, the amount of Servicing Fees payable for any prior Interest Period to the extent not already paid pursuant to clause THIRD above, an amount equal to Reliening Expenses;
(vii) SEVENTH, (A) during the Revolving Period with respect to each Dissenting Lender after the time its Commitment has been reduced to zero pursuant to Section 2.1(b)(iv), pro rata, an amount equal to its outstanding Capital until such amount Dissenting Lender’s Capital has not been distributed reduced to zero and (B) during the Amortization Period, to the Deal Agent for the account of the Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(viii) EIGHTH, to the Deal Agent for the account of the Lenders 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 SECOND 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iix) secondTENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments)Payment Date, plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent not paid pursuant to clause THIRD above and any such amount has not been distributed to such Lender or Credit PartyServicing Fee unpaid from any prior Payment Date;
(iiixi) thirdELEVENTH, as set forth to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in clause full; and
(x)xii) TWELFTH, (y) or (z) below, as applicable:to the Borrower any remaining amounts.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, the Borrower (or at all times after the occurrence and continuance of a Termination Event, the Collateral Agent) shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person in the following order of payments set forth belowpriority:
(i) First, all Collections on Pool Receivables that are received to the Hedge Counterparty, an amount equal to any Hedge Costs (exclusive of termination payments) and any such Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date;
(ii) Second, [Reserved];
(iii) Third, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Servicer or Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower or received to Xxxxx Fargo in any Lock-Box Accountan aggregate amount up to $17,000 per month (the “Cap”); provided, however, that so long as each in the event of the conditions precedent set forth in an acceleration resulting from a Termination Event specified under Section 6.03 are satisfied on 9.1(e)(i) or Section 9.1(g) hereunder, such dateCap will not apply;
(iv) Fourth, the Servicer may release (A) to the Borrower Servicer, an amount equal to any accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement any prior Payment Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each 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;
(v) Fifth, to the Lenders, ratably, an amount equal to the sum of the parties hereto hereby acknowledge and agree that no any accrued and unpaid Interest(A) Interest and Breakage Costs, Fees or Servicing Fees owing as (B) Program Fee, and (C) Unused Fee due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(ivi) firstSixth, during the Revolving Period, to the Servicer for Lenders, ratably (based on the payment outstanding principal amount of the accrued Servicing Fees payable Revolving Loans of each Lender), an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) Seventh, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) Eighth, during the immediately preceding Interest Period Amortization Period, to the Lenders, ratably (plus, if applicablebased on the outstanding principal amount of the Revolving Loans of each Lender), the Additional Principal Payment Amount, until the Aggregate Loan Amount has been reduced to zero;
(ix) Ninth, ratably to the Lenders and the Backup Servicer, an amount equal to 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 Third above) due in respect of Servicing Fees payable for such Payment Date and unpaid from any prior Interest Period Payment Date;
(x) Tenth, to the extent such Reserve Account, (A) an amount has not been distributed equal to any outstanding Reserve Advances and (B) the Serviceramount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iixi) secondEleventh, to each Lender and other Credit Party (ratablythe Backup Servicer, based on if it has become the amount then Successor Servicer, any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause Fourth above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) Twelfth, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) Thirteenth, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as a payment in reduction of the portion of the Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, plusthe Borrower (or the Collateral Agent, if as applicable, ) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent such amount has not been distributed to such Lender Collection Account. The Borrower (or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) belowthe Collateral Agent, as applicable:) shall pay such amount ratably to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, the Borrower (or at all times after the occurrence and continuance of a Termination Event, the Collateral Agent) shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date;
(ii) SECOND, [Reserved];
(iii) THIRD, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out‑of‑pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to Xxxxx Fargo up to $17,000, monthly;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Lenders, ratably, an amount equal to the sum of the parties hereto hereby acknowledge and agree that no any accrued and unpaid Interest(A) Interest and Breakage Costs, Fees or Servicing Fees owing as (B) Program Fee, and (C) Unused Fee due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(ivi) firstSIXTH, during the Revolving Period, to the Servicer for Lenders, ratably (based on the payment outstanding principal amount of the accrued Servicing Fees payable Revolving Loans of each Lender), an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, during the immediately preceding Interest Period Amortization Period, to the Lenders, ratably (plus, if applicablebased on the outstanding principal amount of the Revolving Loans of each Lender), the Additional Principal Payment Amount, until the Aggregate Loan Amount has been reduced to zero;
(ix) NINTH, ratably to the Lenders and the Backup Servicer, an amount equal to 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 THIRD above) due in respect of Servicing Fees payable for such Payment Date and unpaid from any prior Interest Period Payment Date;
(x) TENTH, to the extent such Reserve Account, (A) an amount has not been distributed equal to any outstanding Reserve Advances and (B) the Serviceramount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on if it has become the amount then Successor Servicer, any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as a payment in reduction of the portion of the Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, plusthe Borrower (or the Collateral Agent, if as applicable) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or the Collateral Agent, as applicable) shall pay such amount ratably to the Lenders.
(ii) If on any Payment Date during the Amortization Period, the amount paid pursuant to Section 2.6(a)(viii) is insufficient to reduce the Aggregate Loan Amount to zero, the Deal Agent (acting at the direction, or with the consent, of the Required Lenders acting in their respective sole discretion), may direct the Collateral Agent to withdraw any or all of the amount on deposit in the Reserve Account, and pay such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period amount ratably to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Administrator shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set aside forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the Collateral Custodian, in an amount equal to any accrued and hold unpaid Collateral Custodian Fees;
(2) pro rata to each Lender, in trust for the benefit of the Secured Parties an amount equal to any accrued and unpaid Interest;
(or3) pro rata to (a) each Lender, if so requested by in an amount equal to any accrued and unpaid Commitment Reduction Fee and Breakage Costs and (b) to the Administrative Agent, segregate any applicable Lender, the Collateral Custodian, the Affected Parties, the Indemnified Parties, or the Secured Parties, as applicable, all Fees and other amounts, including any Increased Costs, but other than the principal of Advances Outstanding, then due under this Agreement;
(4) pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero, pro rata in accordance with the amount of Advances Outstanding hereunder;
(5) to the applicable party, to pay all other Administrative Expenses;
(6) to the applicable Governmental Authority, any Tax or withholding Tax which, if not paid, could result in a separate account designated by Lien on the assets of the Borrower; and
(7) any remaining amounts shall be distributed to the Borrower.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Administrator shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), pro rata to each Lender, in an amount equal to any accrued and unpaid Interest;
(3) to the extent not paid pursuant to Section 2.7(a), pro rata to (a) each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee and Breakage Costs and (b) to the Administrative Agent, which shall be an account maintained and controlled by any applicable Lender, the Administrative Agent unless Collateral Custodian, the Administrative Agent otherwise instructs in its sole discretionAffected Parties, the Indemnified Parties, or the Secured Parties, all other amounts, including any Increased Costs, but other than the principal of Advances Outstanding, then due under this Agreement;
(4) to the extent not paid pursuant to Section 2.7(a), for application pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero, pro rata in accordance with the priority amount of payments Advances Outstanding hereunder;
(5) during the Revolving Period, as directed by the Collateral Administrator, to repay Advances Outstanding, return cash to the Principal Collections Account and/or, if the Distribution Conditions are satisfied on such Payment Date, to be paid to the Borrower;
(6) after the end of the Revolving Period, to the Borrower in an amount sufficient to pay when due any Tax arising from Gains (including as a result of market discount) incurred prior to the Amendment and Restatement Effective Date (A) in respect of which no distribution has previously been made pursuant to this Section 2.7(b)(6) and (B) not subject to Independent Verification, calculated in accordance with the assumptions set forth below, all Collections on Pool Receivables that are received by in Section 6.5 of the Servicer or AIV Limited Partnership Agreement as of the Borrower or received in any Lock-Box Accountdate hereof; provided, however, that so long as each the aggregate amount of such Gains for purposes of such calculation shall be net of any losses of the conditions precedent set forth AIV, against which such Gains can be offset for tax purposes as of the date of such determination (including any losses of the AIV from prior periods after the Revolving Period which were not utilized to offset Gains in such prior period);
(7) after the end of the Revolving Period, to the Borrower in the amount requested by the Borrower pursuant to Section 6.03 2.14(b) for distribution by the Borrower to its members as part of the distributions to be made by the Borrower to its members that are required to enable the BDC to qualify annually as a “regulated investment company” under subchapter M of the Code and to avoid a liability for taxes under Section 4982 of the Code;
(8) after the end of the Revolving Period or after the occurrence and during the continuation of a Curable BDC Asset Coverage Event, to the Lenders to pay the Advances Outstanding;
(9) to the extent not paid pursuant to Section 2.7(a), to the applicable party to pay all other Administrative Expenses;
(10) to the extent not paid pursuant to Section 2.7(b)(6), to the applicable Governmental Authority, any Tax or withholding Tax which, if not paid, could result in a Lien on the assets of the Borrower; and
(11) any remaining amounts shall be distributed to the Borrower.
(c) The Collateral Administrator may, in its sole discretion, direct the Collateral Custodian to make a payment to the Borrower or to the Excess Future Funding Account from the Principal Collection Account on any Business Day other than a Payment Date if the Distribution Conditions are satisfied on such dateBusiness Day; provided that, if a Default or an Event of Default under Section 9.1(s) is the only Distribution Condition failed on any Business Day, the Servicer Collateral Administrator may release direct the Collateral Custodian to make a payment to the Excess Future Funding Account from the Principal Collection Account on such Business Day for the purpose of curing such Default or Event of Default; provided further that, if on such Business Day (i) a Curable BDC Asset Coverage Event is the only Distribution Condition failed and (ii) the Borrower Payment Conditions are satisfied, the Collateral Administrator may direct the Collateral Custodian to make a payment to the Borrower from such Collections the Principal Collection Account in an amount up to the sum (without duplication) of (A) Prepayment Gains plus (B) the lesser of (1) the aggregate Market Discount accrued during the applicable Collection Period and (2) $3,000,000. For the avoidance of doubt, if no Market Discount has accrued during any Collection Period, the amount for purposes of clause (B) above shall be zero during such Collection Period.
(d) So long as no Default or Event of Default or Curable BDC Asset Coverage Event has occurred and is continuing, the Collateral Administrator may, in its sole discretion, direct the Collateral Custodian to, on any Business Day, transfer an amount not to exceed the Non-Borrowing Base Principal Collection Amount from the Principal Collection Account to the principal subaccount of the Borrower Collection Account or to the Excess Future Funding Account; provided that, if anya Default or an Event of Default under Section 9.1(s) necessary is the only Default, Event of Default or Curable BDC Asset Coverage Event continuing on any Business Day, the Collateral Administrator may direct the Collateral Custodian to pay make such a transfer to the purchase price Excess Future Funding Account from the Principal Collection Account on such Business Day for Receivables purchased the purpose of curing such Default or Event of Default.
(e) So long as no Default or Event of Default has occurred and is continuing, the Collateral Administrator may, in its sole discretion, direct the Collateral Custodian to, on any Business Day, transfer an amount not to exceed the Non-Borrowing Base Interest Collection Amount from the Interest Collection Account to the interest subaccount of the Borrower Collection Account or to the Excess Future Funding Account; provided that, if a Default or an Event of Default under Section 9.1(s) is the only Default or Event of Default continuing on any Business Day, the Collateral Administrator may direct the Collateral Custodian to make such a transfer to the Excess Future Funding Account from the Interest Collection Account on such Business Day for the purpose of curing such Default or Event of Default. For the avoidance of doubt, such transfer may be made during the continuation of a Curable BDC Asset Coverage Event.
(f) The Collateral Administrator may, in its sole discretion, direct the Collateral Custodian to make a payment to the Borrower or to the Excess Future Funding Account from (i) the principal subaccount of the Borrower Collection Account on any Business Day so long as the Collateral Administrator certifies to the Administrative Agent that, both immediately prior to and immediately after giving effect to any such payment, (A) no Default or Event of Default or Curable BDC Asset Coverage Event has occurred and is continuing or would occur as a result of such payment and (B) there is no Borrowing Base Deficiency and/or (ii) the interest subaccount of the Borrower Collection Account on any Business Day so long as the Collateral Administrator certifies to the Administrative Agent that, both immediately prior to and immediately after giving effect to any such payment, (A) no Default or Event of Default has occurred and is continuing or would occur as a result of such payment and (B) there is no Borrowing Base Deficiency; provided that, if a Default or an Event of Default under Section 9.1(s) is the only Default, Event of Default or, if applicable, Curable BDC Asset Coverage Event continuing on any Business Day, the Collateral Administrator may direct the Collateral Custodian to make any payment described above to the Excess Future Funding Account from the Borrower Collection Account on such Business Day for the purpose of curing such Default or Event of Default.
(g) Upon the occurrence and during the continuation of a Default or an Event of Default, the Collateral Custodian shall, on a daily basis, transfer all amounts on deposit in the Borrower Collection Account to the Collection Account.
(h) On each Borrowing Base Certificate delivered on any Payment Date where a distribution is requested pursuant to Section 2.7(b)(6), the Borrower shall set forth an itemized computation of the amount which would be distributed pursuant to Section 2.7(b)(6) (assuming sufficient Available Funds after distributions per Section 2.7(b)(1)-(5)) including calculation in reasonable detail regarding each component of such calculation as set forth herein and in the related Borrowing Base Certificate. Such Borrowing Base Certificate shall set forth the amount of Gains (minus any such Gains for which a distribution has previously been made pursuant to Section 2.7(b)(6)) pursuant to which such Borrowing Base Certificate is being delivered, the amount of losses of the Borrower and the AIV available to offset such Gains, the applicable tax rates used in calculating such Taxes, and all other factors used to calculate such Tax. Upon at least one (1) Business Day’s notice to the Borrower and the Collateral Custodian prior to the relevant Payment Date, the Administrative Agent may request independent verification of the inputs and calculations set forth in such Borrowing Base Certificate from an independent accounting firm (an “Independent Verification”), selected by the Administrative Agent, and reasonably acceptable to the Borrower and the AIV. Such accounting firm shall be required to provide such verification within thirty (30) days of its engagement, and the determination of such accounting firm shall be final and binding on all parties. During the verification procedure the Collateral Custodian shall hold all Available Funds otherwise distributable on the Payment Date pursuant to Section 2.7(b)(6) in escrow for distribution as soon as such verification is finalized. All parties to this Agreement shall cooperate fully with such accounting firm and provide, subject to confidentiality arrangements, all information and data requested by such accounting firm. The fee for such accounting firm’s verification shall be borne by the Administrative Agent, unless the determination concludes that there is a five (5) percent or greater overstatement in the amount of distribution set forth in such Borrowing Base Certificate, in which case the fee will be borne by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the treated as an Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:Expense.
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicableOn any Business Day, the amount of Servicing Fees payable for any prior Collateral Administrator may direct the Collateral Custodian to use amounts on deposit in the Excess Future Funding Account to either (i) make a payment under a Future Funding Obligation, and/or (ii) make a deposit into the Interest Period Collection Account (but only to the extent such amount has not been distributed that (A) amounts on deposit in the Excess Future Funding Account originally came from the Interest Collection Account and (B) no Borrowing Base Deficiency exists either immediately prior to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due or after giving effect to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts payment or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (ydeposit) or (z) below, as applicable:the Principal Collection Account.
Appears in 1 contract
Samples: Loan and Security Agreement (New Mountain Finance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release Prior to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower Collateralization Date, on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer shall pay (oror shall instruct the Qualified Institution then holding the ABS Collateral Account to pay) to the following Persons, following its assumption from the ABS Collateral Account to the extent of control Available Funds on deposit therein, and the Borrower shall pay, after application of the Lock-Box Accountssuch Available Funds, the Administrative Agent) shall, distribute such Collections all remaining amounts set forth below in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) firstFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer)Advances;
(ii) secondSecond, to each Lender and other Credit Party (ratablythe Servicer, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyServicing Fee;
(iii) thirdThird, as set forth if a Collateral Custodian is appointed and, to the extent not paid for by Santander Consumer, to such Collateral Custodian, in clause an amount equal to any accrued and unpaid Collateral Custodian Fee;
(x)iv) Fourth, pro rata, to the Deal Agent for the payment, on a pari passu basis to each Lender, in an amount equal to (A) the Monthly Interest Payment Amount for such Payment Date, (yB) any unpaid Breakage Costs, (C)any accrued and unpaid Unused Facility Fees and (D) any Upfront Fees payable on such Payment Date;
(v) Fifth, to any Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.12(e);
(vi) Sixth, to the Deal Agent for the ratable payment to each Lender, the Monthly Principal Payment Amount with respect to such Payment Date; and
(vii) Seventh, to the Deal Agent for the ratable payment to the appropriate entities in an amount equal to all other Aggregate Unpaids (other than the Loans Outstanding) then due to the Secured Parties, the Deal Agent, the Affected Parties or the Indemnified Parties for the payment thereof; and
(zviii) belowEighth, as applicableany remaining amount shall be distributed to the Borrower.
(b) On or after the Collateralization Date, on each Payment Date, the Servicer shall pay (or shall instruct the Qualified Institution then holding the Collection Account to pay) to the following Persons, from the Collection Account to the extent of Available Funds, the following amounts in the following order of priority:
(i) First, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances;
(ii) Second, to the Servicer, the accrued and unpaid Servicing Fee;
(iii) Third, if a Collateral Custodian is appointed and, to the extent not paid for by Santander Consumer, to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee;
(iv) Fourth, pro rata, to the Deal Agent for the payment, on a pari passu basis to each Lender, in an amount equal to (A) the Monthly Interest Payment Amount for such Payment Date, (B) any unpaid Breakage Costs, (C) any accrued and unpaid Unused Facility Fees and (D) any Upfront Fees payable on such Payment Date;
(v) Fifth, to any Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.12(e);
(vi) Sixth, to the Deal Agent for the ratable payment to each Lender, the Monthly Principal Payment Amount with respect to such Payment Date;
(vii) Seventh, to the Deal Agent for the ratable payment to the appropriate entities in an amount equal to all other Aggregate Unpaids (other than the Loans Outstanding) then due to the Secured Parties, the Deal Agent, the Affected Parties or the Indemnified Parties, for the payment thereof; and
(viii) Eighth, any remaining amount shall be distributed to the Borrower.
Appears in 1 contract
Samples: Investment Agreement (Santander Holdings USA, Inc.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (orshall instruct the Account Bank to pay, to the following its assumption Persons, from the Collection Account to the extent of control of Available Funds the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections following amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in the related Monthly Report: (i) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances, to the extent not previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, 56 that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (other than Hedge Breakage Costs), and (B) to the Administrative Agent (based on amounts due to the members of each Lender Group pursuant to this subclause), for further payment to each Lender, an amount equal to the sum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent (based on Lender Percentage) for further payment to each Lender, the Monthly Principal Payment Amount; (vi) Sixth, if the Termination Date has not occurred but a Partial Expiration Event has occurred, pro rata to the Administrative Agent for a Lender Group that includes a Non-Extending Lender (based on the Loans Outstanding to each such Non-Extending Lender) for further payment to each Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender's Invested Percentage as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, to the Administrative Agent (based on the amount of the Subordinated Monthly Interest Payment Amount due to members of the related Lender Group), for further payment to each Lender, the Subordinated Monthly Interest Payment Amount; (viii) Eighth, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), such Subordinated Hedge Breakage Costs; (ix) Ninth, to the Administrative Agent (based on such amounts due) for further payment to each Lender or the related Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the Lenders and Indemnified Parties under this Agreement; (x)) Tenth, pro rata (ybased on such amounts due) to the Backup Servicer and the Successor Servicer, any fees, expenses (including Transition Expenses) and indemnities not paid pursuant to clauses (ii) or (z) belowiii), above, as applicable:; and 57
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (orshall instruct the Account Bank to pay, to the following its assumption Persons, from the Collection Account to the extent of control of Available Funds the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections following amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in the related Monthly Report: (i) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances, to the extent not previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (other than Hedge Breakage Costs), and (B) to each Agent (based on amounts due to the members of each Lender Group pursuant to this subclause), for further payment to each related Lender, an amount equal to the sum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any related Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to each Agent (based on Lender Percentage) for further payment to each related Lender, the Monthly Principal Payment Amount; (vi) Sixth, if the Termination Date has not occurred but a Partial Expiration Event has occurred, pro rata to each Agent for a Lender Group that includes a Non-Extending Lender (based on the Loans Outstanding to each such Non-Extending Lender) for further payment to each related Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender's Invested Percentage DB1/ 139452285.4 53 154304283v7 as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, pro rata to each Agent (based on the amount of the Subordinated Monthly Interest Payment Amount due to members of the related Lender Group), for further payment to each related Lender, the Subordinated Monthly Interest Payment Amount; (viii) Eighth, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), such Subordinated Hedge Breakage Costs; (ix) Ninth, pro rata to each Agent (based on such amounts due) for further payment to the related Lender or the related Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the Lenders and Indemnified Parties under this Agreement; (x)) Tenth, pro rata (ybased on such amounts due) to the Backup Servicer and the Successor Servicer, any fees, expenses (including Transition Expenses) and indemnities not paid pursuant to clauses (ii) or (z) belowiii), above, as applicable:; and (xi) Eleventh, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Settlement Procedures. (a) The On each Payment Date and on the Maturity Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and Servicer shall set aside and hold in trust for the benefit of the Secured Parties Advances (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Servicer, an amount equal to any Unreimbursed Servicer Advances;
(iii) THIRD, 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 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;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (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;
(vi) SIXTH, during the Revolving Period, to the Deal Agent for the account of the initial Settlement Date Lenders, an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, during the Amortization Period, to the Deal Agent for the account of the Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(ix) NINTH, to the Deal Agent for the account of the Lenders 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 be payable on include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Settlement Payment Date and instead unpaid from any prior Payment Date;
(x) TENTH, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(xi) ELEVENTH, to the Backup Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts shall be payable on up to all Aggregate Unpaids (during the following Settlement Date:Revolving Period, other than Capital) until paid in full;
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(i) firstOne Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days’ prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer for the payment or a representative of the accrued Servicing Fees payable for Servicer designated by a Responsible Officer of the immediately preceding Interest 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 end of the related Collection Period (plusthe sum of Available Funds and Excess Reserve Amount, if applicableafter giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xii). Any such prepayment of Servicing Fees payable for principal shall include all accrued and unpaid Yield and any prior Interest Period to the extent such amount has not been distributed to the Servicer);applicable Breakage Costs relating thereto.
(ii) secondNo more often than two (2) times per calendar month, the Borrower may, upon two Business Days’ prior written notice (such notice to be received by the Deal Agent no later than 4:00 p.m. (New York time) on such day) to the Deal Agent, reduce the Capital by remitting to the Deal Agent: (i) cash and (ii) instructions to reduce such Capital, related accrued Yield and Breakage Costs. Such cash shall be remitted to the Deal Agent for the account of the Lenders, to each Lender be distributed by the Deal Agent to the Lenders, pro-rata. Any such reduction of the Capital shall be in a minimum amount of $500,000 and other Credit Party (ratablywill occur only if sufficient funds have been remitted to pay all such amounts in the succeeding sentence in full. Upon receipt of such amounts, based the Deal Agent shall apply such amounts first to the pro-rata reduction of the Capital, second to the payment of related accrued Yield on the amount then of the Yield to be repaid by paying such amounts to the respective Lenders, and third to the payment of any Breakage Costs. Any notice relating to any prepayment pursuant to this Section 2.7(b)(ii) shall be irrevocable.
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(v) and (vi) is insufficient to cover all amounts due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect lesser of such payments), plus, if applicable, shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corporation)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit Any Collections of the Secured Parties Purchased Receivables received (or, if so requested or deemed to have been received) by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which Seller shall be an account maintained and controlled remitted directly to Triple-A 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from depositing such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box AccountsAccount within one Business Day of Seller's receipt (or deemed receipt) thereof. On each Payment Date, the Administrative AgentSeller shall pay to Triple-A (i) shallYield on all outstanding Capital the Fixed Period for which ends on such date PLUS (ii) the CP Dealer Fees, distribute if any, on any Commercial Paper maturing on such Collections in the following order of priority; provided, however, that date and raised to fund such Capital.
(b) On each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date to occur prior to the Designated Termination Date, the Seller shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Dateeither:
(i) firstif Triple-A has consented thereto, sell additional Receivables hereunder in accordance with the procedures and subject to the Servicer for conditions set forth in SECTION 2.01 such that, immediately following such Receivables Purchase, the payment 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 accrued Servicing Fees payable purchase price for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);Receivables Purchase; or
(ii) secondif 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 each Lender and other Credit Party be applied toward the reduction of outstanding Capital, all Collections so set aside but not to exceed the sum of (ratablyi) the Capital allocated to such Fixed Period, based on the amount then due and owing), (ii) all accrued and unpaid InterestYield thereon, Fees and Breakage Fees due (iii) the aggregate of all other amounts owed hereunder by the Seller to such Lender and 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 Purchased Receivable 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 Credit Party for adjustment made or performed by the immediately preceding Interest Period Seller or any other Person (including any additional amounts including, without limitation, those described in the definition of "DILUTION FACTORS"), or indemnified amounts payable under Sections 5.03 and 13.01 (ii) reduced or canceled as a result of a setoff in respect of any claim by the Obligor thereof against the Seller or any other Person (whether such paymentsclaim arises out of the same or a related transaction or an unrelated transaction), plus, if applicable, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of such reduction, 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 has breached its obligations under SECTION 5.01(j), then the Seller shall be deemed to have received on such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect day a Collection of such paymentsPurchased Receivable: (x) payable for any prior Interest Period if such representation, warranty or covenant relates to the extent non-existence of any Adverse Claims, the Seller shall be deemed to have received a Collection of such Purchased Receivable in the dollar amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), 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 Triple-A Purchase Agreement or the perfection of Triple-A's security interest in any Equipment as against the Obligor thereunder, then the Seller be deemed to have received a Collection of such Purchased Receivable in an amount equal to the Outstanding Balance thereof. To the extent that any such deemed Collection reduces the Outstanding Balance of such 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, the Contract under which such Purchased Receivable arose and the Related Security 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 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 the Bankruptcy Code), then (i) the Seller shall be deemed to have received Collections with respect to Purchased Receivables arising under such Contract in an amount equal to (A) in the event of a 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 termination or (zB) belowin 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 applicable:a result of such rejection, termination or non-assumption. 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 all of its right, title and interest in and to the relevant Purchased Receivable or Purchased Receivables, the Contracts under which such Purchased Receivable(s) arose and the Related Security relating thereto.
Appears in 1 contract
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (or, following its assumption of control on behalf of the Lock-Box AccountsBorrower shall pay to the following Persons, from (i) the Administrative AgentCollection Account, to the extent of available funds, (ii) shallServicer Advances, distribute and (iii) amounts received in respect of any Hedge Agreement during such Collections Collection Period (the sum of such amounts described in clauses (i), (ii) and (iii) being the "Available Collections") the following amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) firstFIRST, to the Servicer each Hedge Counterparty, any amounts, including any Hedge Breakage Costs, owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer)thereof;
(ii) secondSECOND, to each Lender and other Credit Party (ratablythe Servicer, based on the in an amount then due and owing)equal to any Unreimbursed Servicer Advances, all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Partypayment thereof;
(iii) thirdTHIRD, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Collection Period, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer, in amount equal to any accrued and unpaid currently due Backup Servicing Fee, for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid currently due Collateral Custodian Fee, for the payment thereof;
(vi) SIXTH, to the Deal Agent for the ratable payment to each Lender, in an amount equal to any accrued and unpaid Interest (including any adjustments required due to the Deal Agent's estimate of the Cost of Funds Adjustment) and Breakage Costs;
(vii) SEVENTH, to the Deal Agent for the ratable payment to each Lender, in an amount equal to any accrued and unpaid Program Fee and Facility Fee for such Payment Date;
(viii) EIGHTH, to the Deal Agent, in the amount of unpaid Increased Costs and/or Taxes (if any), for payment to the Lenders in respect thereof;
(ix) NINTH, if on any Business Day during the Revolving Period the Advances Outstanding shall exceed the lesser of (i) the Borrowing Base or (ii) the Facility Amount, then the Borrower shall remit to the Deal Agent a payment in such amount as set forth in clause may be necessary to reduce the Advances Outstanding to an amount less than or equal to the lesser of (i) the Borrowing Base or (ii) the Facility Amount.
(x)) TENTH, to the Deal Agent, all other amounts (yother than Advances Outstanding) then due under this Agreement to the Deal Agent, the Lenders, the Affected Parties or Indemnified Parties;
(zxi) belowELEVENTH, to the extent not paid by the Servicer, to the Backup Servicer, to the Collateral Custodian, and to any Successor Servicer, as applicable:, in an amount equal to any accrued and unpaid Transition Costs, Backup Servicer Expenses, Collateral Custodian Expenses and Market Servicing Fee Differential, for the payment thereof;
(xii) TWELFTH, if such Payment Date occurs during the Revolving Period, to the extent that funds are available, any remaining amounts may be reinvested in Eligible Loans;
(xiii) THIRTEENTH, (A) if such Payment Date occurs during the Revolving Period, first to the Excess Spread Account, in an amount necessary to cure any shortfall in the Required Equity Shortfall and any Overcollateralization Shortfall, second, all remaining amounts of Available Collections to the Borrower; and (B) if such Payment Date occurs during the Amortization Period, first to the Deal Agent for the ratable payment to each Lender, in an amount to reduce Advances Outstanding to zero and to pay in full the Obligations, second any remaining amounts of Available Collections to the Borrower.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (orOn each Payment Date, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each no Event of Default has occurred and is continuing, the conditions precedent Servicer shall direct the Trustee to pay pursuant to the related quarterly Servicing Report (and, subject to Section 2.10(d) the Trustee shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in Section 6.03 are satisfied on such dateServicing Report) to the following Persons, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the following order of priority; provided:
(1) pro rata to (i) the Trustee, however, that each of the parties hereto hereby acknowledge and agree that no in an amount equal to any accrued and unpaid InterestTrustee Fees and (ii) the Securities Intermediary, Fees or in an amount equal to any amounts payable to the Securities Intermediary under the Securities Account Control Agreement;
(2) to the Servicer, in an amount equal to the sum of (i) all reasonable and documented Servicer Reimbursable Expenses (not to exceed $40,000 for such Payment Date) and (ii) any accrued and unpaid Servicing Fees owing as Fee;
(3) pro rata to each Class A Lender, in an amount equal to any accrued and unpaid Class A Interest and Class A Non-Usage Fee;
(4) pro rata to each Class B Lender, in an amount equal to any accrued and unpaid Class B Interest and Class B Non-Usage Fee;
(5) (i) prior to the end of the initial Settlement Date shall Reinvestment Period, at the Servicer’s discretion, to the Unfunded Exposure Account, up to an amount that would cause the funds in the Unfunded Exposure Account to equal the aggregate of all Unfunded Exposure Equity Amounts and (ii) after the Reinvestment Period, to the Unfunded Exposure Account, up to an amount that would cause the funds in the Unfunded Exposure Account to equal the Aggregate Exposure Amount;
(6) pro rata to (i) each Class A Lender, in an amount equal to any accrued and unpaid Breakage Costs, and (ii) to the Administrative Agent, any applicable Class A Lender and the Indemnified Parties with respect to the Class A Lenders, as applicable, all Fees and other amounts, including, without limitation, any Increased Costs and fees or expenses of counsel, but other than the principal of Advances Outstanding and any Prepayment Premium then due under this Agreement;
(7) pro rata to each Class A Lender, if a Class A Borrowing Base Deficiency exists, in an amount necessary to cure such Class A Borrowing Base Deficiency, pro rata in accordance with the amount of Class A Advances Outstanding hereunder;
(8) pro rata to each Class B Lender, if a Class B Borrowing Base Deficiency exists, in an amount necessary to cure such Class B Borrowing Base Deficiency, pro rata in accordance with the amount of Class B Advances Outstanding hereunder, including any replenishment of the Class B Minimum Reserve Amount to the extent then required to be payable on such Settlement Date deducted from the Class B Borrowing Base;
(9) pro rata to each Class A Lender, if the Class A Facility Amount has been terminated in whole pursuant to Section 2.3(a), in an amount equal to the Class A Advances Outstanding;
(10) pro rata to (i) each Class B Lender, in an amount equal to any accrued and instead such unpaid Breakage Costs, and (ii) to any applicable Class B Lender and the Indemnified Parties with respect to the Class B Lenders, as applicable, all Fees and other amounts, including, without limitation, any Increased Costs and fees or expenses of counsel, but other than the principal of Advances Outstanding any Prepayment Premium then due under this Agreement;
(11) pro rata to each Class B Lender, if the Class B Facility Amount has been terminated in whole pursuant to Section 2.3(a), in an amount equal to the Class B Advances Outstanding;
(12) to the Expense Reserve Account, in an amount equal to the Expense Reserve Account Amount;
(13) pro rata to each applicable party to pay all other Administrative Expenses; and
(14) so long as no Default has occurred and is continuing, any remaining amounts shall be payable deemed released from the Lien of the Trustee hereunder and, at the direction of the Borrower, distributed to or otherwise at the direction of the Borrower.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer shall direct the Trustee to pay pursuant to the related quarterly Servicing Report (and, subject to Section 2.10(d), the Trustee shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Servicing Report) to the following Settlement DatePersons, the following amounts in the following order of priority:
(i1) firstto the extent not paid pursuant to Sections 2.7(a)(1) through (11), to such Persons in such amounts in such priority;
(2) to the extent not paid pursuant to Section 2.7(a)(12), to the Servicer for Expense Reserve Account, in an amount equal to the payment Expense Reserve Account Amount;
(3) pro rata to each Class A Lender, in an amount equal to any accrued and unpaid Prepayment Premium owing to the Class A Lenders;
(4) after the end of the Reinvestment Period, pro rata to each Class A Lenders to pay the Class A Advances Outstanding;
(5) pro rata to each Class B Lender, in an amount equal to any accrued Servicing Fees payable for and unpaid Prepayment Premium owing to the immediately preceding Interest Period Class B Lenders;
(plus6) after the end of the Reinvestment Period, if applicable, pro rata to each Class B Lender to pay the amount of Servicing Fees payable for any prior Interest Period Class B Advances Outstanding;
(7) to the extent such amount has not been distributed paid pursuant to the ServicerSection 2.7(a) or this Section 2.7(b), pro rata to each applicable party to pay all other Administrative Expenses;
(ii8) during the Reinvestment Period, at the discretion of the Servicer any remaining amounts specified shall remain in the Principal Collection Account as Principal Collections; and
(9) secondso long as no Default has occurred and is continuing, to each Lender and other Credit Party (ratablyany remaining amounts shall be deemed released from the Lien of the Trustee hereunder and, based on at the amount then due and owing)direction of the Borrower, all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:otherwise at the direction of the Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (NewStar Financial, Inc.)
Settlement Procedures. (a) The On each Payment Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and Servicer shall set aside and hold in trust for the benefit of the Secured Parties Advances (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Servicer, an amount equal to any Unreimbursed Servicer Advances;
(iii) THIRD, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to SST up to $17,000, monthly;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (B) the Program Fee, and (C) the Unused Fee, Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(vi) SIXTH, during the Revolving Period, to the Deal Agent for the account of the initial Settlement Date shall be payable on Lenders, an amount equal to the Monthly Principal Payment Amount for such Settlement Date and instead such amounts shall be payable on the following Settlement Payment Date:;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, (i) firstduring the Revolving Period with respect to each Dissenting Investor after the time its Commitment has been reduced to zero pursuant to Section 2.1(b)(iv), pro rata, an amount equal to its outstanding Capital until such Dissenting Investor’s Capital has been reduced to zero and (ii) during the Amortization Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(ix) NINTH, to the Deal Agent for the immediately preceding Interest Period account of the Lenders and the Backup Servicer, an amount equal to Increased Costs, any Additional Amounts and Indemnified Amounts (plusprovided that, if applicablewith respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) the amount of Servicing Fees payable for necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any prior Interest Period to the extent such amount has not been distributed to the Servicerdeposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days’ prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xii), plus, if applicable, .
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (xthe Deal Agent for payment to the Lenders.(i), (y) or (z) below, as applicable:
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit Any Collections of the Secured Parties Purchased Receivables received (or, if so requested or deemed to have been received) by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which Seller shall be an account maintained and controlled remitted directly to Triple-A by depositing such Collections in 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 Borrower or received in any Lock-Box Account; provided, however, that so long as Account within one Business Day of Seller's receipt (or deemed receipt) thereof. On each of the conditions precedent set forth in Section 6.03 are satisfied on such datePayment Date, the Servicer may release Seller shall pay to Triple-A (i), Yield on all outstanding Capital the Borrower from such Collections the amount (if any) necessary to pay the purchase price Fixed Period for Receivables purchased by the Borrower which ends on such date in accordance with PLUS (ii) to Triple-A, the terms of the Purchase CP Dealer Fees, if any, on any Commercial Paper maturing on such date and Sale Agreement (each raised to fund such release, a “Release”)Capital. On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box AccountsSeller shall pay to ING, the Administrative AgentING Yield, if any.
(b) shall, distribute such Collections in the following order of priority; provided, however, that On each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date to occur prior to the Designated Termination Date, the Seller shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Dateeither:
(i) firstif Triple-A has consented thereto, sell additional Receivables hereunder in accordance with the procedures and subject to the Servicer for conditions set forth in SECTION 2.01 such that, immediately following such Receivables Purchase, the payment Capital Limit equals or exceeds outstanding Capital and the ING Capital Limit equals or exceeds the outstanding ING 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 accrued Servicing Fees payable purchase price for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);Receivables Purchase; or
(ii) secondif 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, or ING Capital, as applicable, such that, following the application of such Collections to outstanding Capital or ING Capital, the Capital Limit equals or exceeds the outstanding Capital and the ING Capital Limit equals or exceeds the outstanding ING 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 each Lender and other Credit Party be applied toward the reduction of outstanding Capital, all Collections so set aside but not to exceed the sum of (ratablyi) the Capital allocated to such Fixed Period, based on the amount then due and owing), (ii) all accrued and unpaid InterestYield thereon, Fees and Breakage Fees due (iii) the aggregate of all other amounts owed hereunder by the Seller to such Lender and 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 Purchased Receivable 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 Credit Party for adjustment made or performed by the immediately preceding Interest Period Seller or any other Person (including any additional amounts including, without limitation, those described in the definition of "DILUTION FACTORS"), or indemnified amounts payable under Sections 5.03 and 13.01 (ii) reduced or canceled as a result of a setoff in respect of any claim by the Obligor thereof against the Seller or any other Person (whether such paymentsclaim arises out of the same or a related transaction or an unrelated transaction), plus, if applicable, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of such reduction, 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 has breached its obligations under SECTION 5.01(j), then the Seller shall be deemed to have received on such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect day a Collection of such paymentsPurchased Receivable: (x) payable for any prior Interest Period if such representation, warranty or covenant relates to the extent non-existence of any Adverse Claims, the Seller shall be deemed to have received a Collection of such Purchased Receivable in the dollar amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), 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 Triple-A Purchase Agreement or the perfection of Triple-A's security interest in any Equipment as against the Obligor thereunder, then the Seller be deemed to have received a Collection of such Purchased Receivable in an amount equal to the Outstanding Balance thereof. To the extent that any such deemed Collection reduces the Outstanding Balance of such 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, the Contract under which such Purchased Receivable arose and the Related Security 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 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 the Bankruptcy Code), then (i) the Seller shall be deemed to have received Collections with respect to Purchased Receivables arising under such Contract in an amount equal to (A) in the event of a 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 termination or (zB) belowin 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 applicable:a result of such rejection, termination or non-assumption. 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 all of its right, title and interest in and to the relevant Purchased Receivable or Purchased Receivables, the Contracts under which such Purchased Receivable(s) arose and the Related Security relating thereto.
Appears in 1 contract
Settlement Procedures. (a) The On each Payment Date, the Servicer shall set aside determine, the portion of Available Funds which are Income Collections with respect to such Payment Date and hold shall so notify the Collateral Agent. On such Payment Date, the Collateral Agent shall withdraw such amount of Income Collections and any Excess Reserve Amount, Reserve Advances and Servicer Advances and investment earnings on amounts on deposit in trust for the benefit Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person in the following order of priority:
(i) FIRST, to the Secured Parties Servicer, an amount equal to any Unreimbursed Servicer Advances;
(orii) SECOND, if so requested by to the Administrative AgentServicer, segregate an amount equal to any accrued and unpaid Servicing Fees due in a separate account designated by the Administrative Agent, which shall be an account maintained respect of such Payment Date 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 Borrower or received in any Lock-Box AccountServicing Fees unpaid from any prior Payment Date; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, if the Servicer may release has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee;
(iii) THIRD, to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased extent not paid by the Borrower on such date CAC in accordance with the terms of the Purchase and Sale Agreement (each such releaseBackup Servicing Agreement, a “Release”). On each Settlement Date, to the Backup Servicer so long as it has not become the Servicer (orhereunder, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no an amount equal to any accrued and unpaid InterestBackup Servicing Fee due in respect of such Payment Date and any unpaid Backup Servicing Fee from any prior Payment Date;
(iv) FOURTH, Fees or Servicing Fees owing as (X) to the Deal Agent for the account of the initial Settlement Date shall be payable on Lenders, an amount equal to the sum of any accrued and unpaid (A) Yield and Breakage Costs, (B) the Program Fee and (C) Increased Costs, Indemnified Amounts and any Additional Amounts due in respect of such Settlement Payment Date and instead any such amounts shall be payable on unpaid from any prior Payment Date and (Y) to the following Settlement Hedge Counterparty, any accrued and unpaid Hedge Costs (exclusive of any termination payments) in respect of such Payment Date and any unpaid Hedge Costs from any prior Payment Date:;
(v) FIFTH, to the Backup Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause SECOND above and any such Servicing Fee unpaid from any prior Payment Date;
(vi) SIXTH, to the Reserve Account, an amount equal to any outstanding Reserve Advances;
(vii) SEVENTH, all remaining amounts (i) first, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the Lenders in an amount of Servicing Fees payable for any prior Interest Period equal to the extent such amount outstanding Capital until Capital has not been distributed reduced to the Servicer);
zero and (ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party Deal Agent for the immediately preceding Interest Period account of any other applicable Person, in an amount equal to all other Aggregate Unpaids until paid in full;
(including viii) EIGHTH, to the Backup Servicer, any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 Monthly Servicing Fee (as defined in the Backup Servicing Agreement) owed to the Backup Servicer due in respect of such paymentsPayment Date and any unpaid Monthly Servicing Fee (as defined in the Backup Servicing Agreement) from any prior Payment Date and not paid pursuant to clauses (i) or (v); and
(ix) NINTH, plus, if applicableto the Borrower any remaining amounts.
(b) On each Payment Date, the Servicer shall determine the portion of Available Funds which are Principal Collections and shall so notify the Collateral Agent. On such Payment Date, the Collateral Agent shall withdraw such amount of Principal Collections and any Excess Reserve Amount, Reserve Advances and Servicer Advances and the amounts described in clauses (iii) and (iv) of Available Funds from the Collection Account and allocate and distribute such Interestamounts to the applicable Person, Fees in the following order of priority:
(i) FIRST, to the Deal Agent (X) for payment to the Lenders an amount equal to any accrued and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 unpaid Carrying Costs due in respect of such Payment Date and any Carrying Costs unpaid from any prior Payment Date and (Y) to the Hedge Counterparty, an amount equal to any accrued and unpaid Hedge Costs (exclusive of any termination payments) payable for due in respect of such Payment Date and any Hedge Costs (exclusive of any termination payments) unpaid from any prior Interest Period Payment Date;
(ii) SECOND, to the extent such amount Deal Agent for payment to the Lenders, all remaining amounts, in reduction of the aggregate Capital until Capital has not been distributed reduced to such Lender or Credit Partyzero;
(iii) thirdTHIRD, to the Backup Servicer, any Monthly Servicing Fee (as defined in the Backup Servicing Agreement) owed to the Backup Servicer due in respect of such Payment Date and any unpaid Monthly Servicing Fee (as defined in the Backup Servicing Agreement) from any prior Payment Date and not paid pursuant to Section 2.7(a).
(iv) FOURTH, to the Deal Agent for payment to the Lenders, the Affected Parties, the Backup Servicer or the Indemnified Parties, as applicable, all other Aggregate Unpaids (other than Capital) then due to such party under this Agreement; and
(v) FIFTH, upon the payment in full of all Aggregate Unpaids, first, to the Servicer, any Re-Liening Expenses and second, to the Borrower any remainixx xxxxnts.
(i) If on any Payment Date the amount paid pursuant to Section 2.7(b)(i) is insufficient to cover all Carrying Costs due, on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to such shortfall (such withdrawal, a "Reserve Advance") and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Deal Agent for payment to the Lenders.
(ii) If on any Payment Date the amount on deposit in the Reserve Account is insufficient to pay the insufficiency set forth in clause (xSection 2.7(c)(i), on or prior to 9:00 a.m. (yCharlotte, North Carolina time) the Servicer shall deposit to the Collection Account an amount equal to such insufficiency (each, a "Servicer Advance"), and the Collateral Agent shall pay such amount to the Deal Agent for payment to the Lenders. The Servicer shall not be required to make any Servicer Advance to the extent it does not reasonably deem such amount to be recoverable from future collections on the Loans.
(iii) If on any Payment Date the amount paid pursuant to Section 2.7(b)(ii) is insufficient to reduce Capital to zero, the Deal Agent, in its sole discretion, may direct the Collateral Agent to withdraw any or (z) belowall of the amount on deposit in the Reserve Account, as applicable:and pay such amount to the Deal Agent, for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corporation)
Settlement Procedures. (a) The By delivery of each Settlement Report, the Servicer shall be deemed to have instructed the Account Bank to withdraw the following amounts, in each case as set aside forth in the related Settlement Report: (A) from the Collection Account, Available Funds and hold (B) from the Credit Reserve Account, any Available Funds Shortfall. By delivery of each Settlement Report, the Servicer shall also be deemed to have instructed the Account Bank to pay or make the following distributions in trust for the benefit following amounts to the following Persons on the related Settlement Date in the following order of priority from (x) the Secured Parties Collection Account, to the extent of Available Funds and (ory) the Credit Reserve Account to the extent there is an Available Funds Shortfall, if so requested by with respect to amounts payable under clauses (i) through (iv):
(i) First, (1) to the Administrative AgentServicer and any Successor Servicer, segregate in a separate account designated by an amount equal to the Administrative Agent, which shall be an account maintained accrued and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application unpaid Servicing Fee payable to each of them in accordance with the priority Servicing Agreement, (2) to the Servicer, all reimbursable out-of-pocket costs of payments liquidation, subject to the limitations in the definition of “Liquidation Proceeds” and then (3) to the Successor Servicer, as applicable, any unpaid Transition Expenses, subject, in the case of any Settlement Date occurring prior to the occurrence of the Termination Date, to the Transition Expenses Cap;
(ii) Second, (A) first, pro rata, to the Administrative Agent in an amount equal to any accrued and unpaid Administrative Agent Fees, the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees, the Account Bank in an amount equal to any accrued and unpaid Account Bank Fees, the Owner Trustee, in an amount equal to any accrued and unpaid owner trustee fees, to the Trust Administrator, in an amount equal to any accrued and unpaid Trust Administrator Fee, and to the E-Sign Provider and E-Vault Provider in an amount equal to its accrued and unpaid fees in respect of Electronic Contracts (other than the fees required to be paid by the Collateral Custodian under the terms of the E-Vault Access Agreement not incurred in connection with the actions taken at the direction of the Administrative Agent or the Required Lenders) then (B) second, pro rata, to the Servicer, Administrative Agent, Collateral Custodian, Account Bank, Owner Trustee, E-Sign Provider and E-Vault Provider any expense reimbursements and indemnified amounts payable thereto in accordance with this Agreement, the Servicing Agreement, the Collateral Custodian Agreement, the Account Control Agreement, the Trust Agreement or the E-Vault Access Agreement (in the case of the E-Vault Provider, other than the expenses required to be paid by the Collateral Custodian under the terms of the E-Vault Access Agreement not incurred in connection with the actions taken at the direction of the Administrative Agent or the Required Lenders), in each of clauses (A) and (B) subject, in the case of any Settlement Date occurring prior to the occurrence of the Termination Date, to the Annual Expenses Cap, as applicable;
(iii) Third, to each Lender, pro rata in accordance with such Lender’s Commitment Percentage, an amount equal to any accrued and unpaid (1) Interest with respect to the Outstanding Loan Amount, (2) Breakage Costs due and owing to the Lenders, and (3) all other Aggregate Unpaids (other than the Outstanding Loan Amount) then due under this Agreement to the Lenders;
(iv) Fourth, to each Lender, pro rata in accordance with such Lender’s Commitment Percentage: (A) an amount equal to the positive excess (if any) of the Outstanding Loan Amount as of the related Determination Date (after giving effect to the distribution made clauses (i) through (iii) above) over the Borrowing Base as of such Determination Date or (B) if a Turbo Event has occurred, an amount equal to the Outstanding Loan Amount;
(v) Fifth, on any Settlement Date occurring prior to the Termination Date, to the Credit Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Required Credit Reserve Account Amount;
(vi) Sixth, pro rata, to the extent not paid pursuant to clauses (i) or (ii) above (whether as a result of the limitations on amounts set forth belowtherein or otherwise) to the Servicer, all Collections on Pool Receivables Successor Servicer, Administrative Agent, Collateral Custodian, Account Bank or Owner Trustee any fees, expenses or indemnities owed to such Person;
(vii) Seventh, to any Person who is due any fee, reimbursable expense or indemnified amount under this Agreement that are received by is accrued or due hereunder and not fully paid, the Servicer amount of such fee, expense or indemnified amount; and
(viii) Eighth, any remaining amount shall be distributed to the Borrower or received in Certificateholder free and clear of any Lock-Box Accountinterest of the Lenders and the Administrative Agent; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release no event shall distributions pursuant to the Borrower from such Collections the amount this clause (if anyviii) necessary to pay the purchase price for Receivables purchased be used by the Borrower on such date in accordance with or the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, Certificateholder to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any acquire additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:Receivables.
Appears in 1 contract
Settlement Procedures. Settlement Procedures with regard to each Book-Entry --------------------- Note sold by the For Issuer through an Agent as agent, shall be as follows: For each offer accepted by the Issuer, the Presenting Agent shall communicate to the Issuer, Attention: Xxxxxx X. D'Arcy, CEO or Xxxxxx X. Xxxxx, Xx., CFO (aFax No.: (000) The Servicer shall set aside 000-0000) who will provide a copy to the Trustee, Attention: Xxxxx Xxxx (Fax No.: (000) 000-0000) and hold in trust for the benefit of the Secured Parties (orDesignated Agent, if so requested any, by facsimile transmission or other acceptable means, the Administrative Agent, 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 information set forth below, all Collections on Pool Receivables that are received by : Principal amount. Maturity Date of Notes. In the Servicer or the Borrower or received in any Lockcase of a Fixed Rate Book-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such dateEntry Note, the Servicer may release to interest rate or, in the Borrower from case of a Floating Rate Book-Entry Note, the Interest Rate Formula, the Initial Interest Rate (if known at such Collections the amount time), Index Maturity, Interest Reset Period, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any) necessary and Maximum Interest Rate (if any). Interest Payment Period and Interest Payment Dates. Redemption provisions, if any. Repayment provisions, if any. Settlement date (Original Issue Date). Price to pay public of the purchase price Note (expressed as a percentage). Agent's commission (to be paid in the form of a discount from the proceeds remitted to the Issuer upon settlement). Original issue discount provisions if any. In the case of Currency Indexed Notes, the above-listed information, as applicable, and the Base Exchange Rate(s), Base Interest Rate and Indexed Currencies. In the case of Dual Currency Notes, the above-listed information, as applicable, and the Optional Payment Currency, Designated Exchange Rate and Optional Election Dates. Net proceeds to the Issuer. The Trustee will confirm the information set forth in Settlement Procedure "A" above by telephone with such Agent and the Issuer. The Trustee will assign a CUSIP number to the Global Note representing such Note and will telephone the Issuer and advise the Issuer of such CUSIP number. The Trustee will enter a pending deposit message through DTC's Participant Terminal System, providing the following settlement information to DTC (which shall route such information to Standard & Poor's Ratings Services) and the Presenting Agent: The applicable information set forth in Settlement Procedure "A". Identification as a Fixed Rate Book-Entry Note or a Floating Rate Book-Entry Note. Initial Interest Payment Date for Receivables purchased such Note, number of days by the Borrower on which such date in accordance with succeeds the terms of the Purchase and Sale Agreement related DTC Record Date (each such releasewhich, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order case of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees Floating Rate Notes which reset daily or Servicing Fees owing as of the initial Settlement Date weekly shall be payable on such Settlement the date five calendar days immediately preceding the applicable Interest Payment Date and instead such amounts in the case of all other Notes shall be payable on the following Settlement Date:
(i) first, to Regular Record Date as defined in the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicableNote), the amount of Servicing Fees interest payable for on such Interest Payment Date per $1,000 principal amount of Notes at Maturity, and amount of interest payable per $1,000 principal amount of Notes in the case of Fixed Rate Notes. CUSIP number of the Global Note representing such Note. Whether such Global Note will represent any prior Interest Period other Book-Entry Note (to the extent known at such amount time). To the extent the Issuer has not been distributed already done so, the Issuer will deliver to the Servicer);
Trustee a Pricing Supplement in a form that has been approved by the Issuer and the Agents. The Issuer will also deliver to the Trustee a Global Note representing such Note. The Trustee will complete and authenticate the Global Note representing such Note. DTC will credit such Note to the Trustee's participant account at DTC. The Trustee will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC to (i) debit such Note to the Trustee's participant account and credit such Note to such Agent's participant account and (ii) seconddebit such Agent's settlement account and credit the Trustee's settlement account for an amount equal to the price of such Note less such Agent's commission. The entry of such a deliver order shall constitute a representation and warranty by the Trustee to DTC that (i) the Global Note representing such Book-Entry Note has been executed, delivered and authenticated and (ii) the Trustee is holding such Global Note pursuant to each Lender the relevant Medium- Term Note Certificate Agreement between the Trustee and other Credit Party DTC. An Agent will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC (ratably, based i) to debit such Note to such Agent's participant account and credit such Note to the participant accounts of the Participants with respect to such Note and (ii) to debit the settlement accounts of such Participants and credit the settlement account of such Agent for an amount equal to the price of such Note. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures "G" and "H" will be settled in accordance with SDFS operating procedures in effect on the amount then due and owing)settlement date. The Trustee, all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect upon confirming receipt of such payments)funds in accordance with Settlement Procedure "G", pluswill wire transfer to the account of the Issuer maintained at BankBoston, if applicableN.A. (ABA# 000000000, Account No. 526-76237) in funds available for immediate use, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 transferred to the Trustee in respect accordance with Settlement Procedure "G". An Agent will confirm the purchase of such payments) payable for any prior Interest Period Note to the extent such amount has not been distributed purchaser either by transmitting to the Participants with respect to such Lender Note a confirmation order or Credit Party;
(iii) thirdorders through DTC's institutional delivery system or by mailing a written confirmation to such purchaser. Settlement Procedure -------------------- Timetable: For orders of Book-Entry Notes solicited by the --------- Agent, as agent, and accepted by the Issuer for settlement on the first Business Day after the sale date, Settlement Procedures "A" through "K" set forth in clause above shall be completed as soon as possible but not later than the respective times (x), (yNew York City time) or (z) set forth below, as applicable:: SETTLEMENT PROCEDURE TIME
Appears in 1 contract
Settlement Procedures. (a) The Servicer Any Collections of Purchased Receivables received (or deemed to have been received, including without limitation any Collections deemed to have been received pursuant to Section 2.04(d)) by the Seller shall set aside and hold in trust for be remitted directly to the benefit Collateral Agent on behalf of the Secured Parties (or, if so requested Purchasers by the Administrative Agent, segregate depositing such Collections 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 Borrower or received in any Lock-Box Account within one Business Day of Seller’s receipt (or deemed receipt) thereof. On each Payment Date, the Seller shall direct the Collateral Agent to withdraw from the Collection Account; provided, however, that so long as each and pay on behalf of the conditions precedent set forth in Section 6.03 are satisfied Seller to each Purchaser (i) Yield on such date, all outstanding Capital the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price Fixed Period for Receivables purchased by the Borrower which ends on such date in accordance with plus (ii) to each Conduit Purchaser, the terms of the Purchase CP Dealer Fees, if any, on any Commercial Paper maturing on such date and Sale Agreement (each raised to fund such release, a “Release”)Capital. On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box AccountsSeller shall pay to ING, the Administrative AgentING Yield, if any.
(b) shall, distribute such Collections in the following order of priority; provided, however, that On each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date to occur prior to the Designated Termination Date, the Seller shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Dateeither:
(i) firstif each Managing Agent has consented thereto, sell additional Receivables hereunder in accordance with the procedures and subject to the Servicer for conditions set forth in Section 2.01 such that, immediately following such Receivables Purchase, the payment Capital Limit equals or exceeds outstanding Capital and the ING Capital Limit equals or exceeds the outstanding ING Capital, in which event the Collateral Agent shall, subject to the order of priority set forth in Section 6.11(b), remit the Collections set aside to the Seller in consideration of the accrued Servicing Fees payable purchase price for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);Receivables Purchase; or
(ii) secondif each Managing Agent has not consented to such additional purchase, out of the Collections set aside, subject to each Lender and other Credit Party (ratably, based on the amount then due and owingorder of priority set forth in Section 6.11(b), all direct the Collateral Agent to apply an amount of such Collections toward the reduction of outstanding Capital, or ING Capital, as applicable, such that, following the application of such Collections to outstanding Capital or ING Capital, the Capital Limit equals or exceeds the outstanding Capital and the ING Capital Limit equals or exceeds the outstanding ING Capital. Each reduction of Capital pursuant to this Section 2.04(b)(ii) shall be made ratably to the Purchasers in accordance with their respective Pro Rata Shares, and each payment of the above-described amount of Capital to any Purchaser shall be accompanied by payment of an amount of such Collections equal to Yield accrued and unpaid Interest, Fees and Breakage Fees due or to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 accrue in respect of such paymentsamount of Capital through the end of the Fixed Period(s) to which such Capital is allocated (without duplication, however, of any amounts paid to such Purchaser pursuant to Section 6.11(b)(ii)).
(c) [Reserved]
(d) If on any day the Outstanding Balance of any Purchased Receivable 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 the definition of “Dilution Factors”), plusor (ii) reduced or canceled as a result of a setoff in 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 related transaction or an unrelated transaction), if applicable, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of such reduction, 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 has breached its obligations under Section 5.01(j), then the Seller shall be deemed to have received on such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect day a Collection of such paymentsPurchased Receivable: (x) payable for any prior Interest Period if such representation, warranty or covenant relates to the extent non-existence of any Adverse Claims, the Seller shall be deemed to have received a Collection of such Purchased Receivable in the dollar amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), 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 Receivables Purchase Agreement or the perfection of the Collateral Agent’s security interest in any Equipment as against the Obligor thereunder, then the Seller shall be deemed to have received a Collection of such Purchased Receivable in an amount equal to the Outstanding Balance thereof. To the extent that any such deemed Collection reduces the Outstanding Balance of such 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, the Contract under which such Purchased Receivable arose and the Related Security relating thereto.
(e) Although the Originator, the Seller and the Purchasers agree that the Originator shall have no right to 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 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 the Bankruptcy Code), then (i) the Seller shall be deemed to have received Collections with respect to Purchased Receivables arising under such Contract in an amount equal to (A) in the event of a 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 termination or (zB) belowin 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 applicable:a result of such rejection, termination or non-assumption. 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 all of its right, title and interest in and to the relevant Purchased Receivable or Purchased Receivables, the Contracts under which such Purchased Receivable(s) arose and the Related Security relating thereto.
Appears in 1 contract
Settlement Procedures. (a) The Servicer On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set aside forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the Collateral Custodian, in an amount equal to any accrued and hold unpaid Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(1), Section 2.7(b)(1) and Section 2.8(1) shall not exceed $100,000 per annum;
(2) pro rata to each Lender, in trust an amount equal to (A) such Lender’s share of the Interest for the benefit related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s Share of the Secured Parties Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by C) any unpaid Breakage Costs with respect to such Lender;
(3) pro rata to the Administrative Agent unless and each Lender, all fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding and Administrative Expenses, then due to each such Person under this Agreement;
(4) pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) after the end of the Revolving Period, to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(6) pro rata to each applicable party, to pay all other accrued and unpaid Administrative Expenses and Taxes; and
(7) any remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager).
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a)(1), to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to Section 2.7(a)(1), this Section 2.7(b)(1) and Section 2.8(1) shall not exceed $100,000 per annum;
(2) to the extent not paid pursuant to Section 2.7(a)(2), pro rata to each Lender, in an amount equal to (A) such Lender’s share of the Interest for the related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s share of the Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(3) to the extent not paid pursuant to Section 2.7(a)(3), pro rata to the Administrative Agent otherwise instructs in its sole discretionand each Lender, all other fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding and Administrative Expenses, then due to each such Person under this Agreement;
(4) to the extent not paid pursuant to Section 2.7(a)(4), pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) during the Revolving Period, as directed by the Collateral Manager, to (A) repay Advances Outstanding, (B) return cash to the Principal Collection Account for application in accordance with the priority of payments set forth belowterms hereof and/or (C) unless a Default or Curable BDC Asset Coverage Event has occurred and is continuing, all Collections on Pool Receivables that are received by or after giving effect to such distribution the Servicer Availability is less than zero, to be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager);
(6) after the end of the Revolving Period and to the extent not paid pursuant to Section 2.7(a)(5), to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(7) after the end of the Revolving Period or received after the occurrence and during the continuation of a Curable BDC Asset Coverage Event, to the Lenders to pay the Advances Outstanding;
(8) to the extent not paid pursuant to Section 2.7(a)(6), pro rata to each applicable party to pay all other Administrative Expenses and Taxes; and
(9) any remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager).
(c) The Collateral Manager may, in its sole discretion, direct the Collateral Custodian to make a payment to the Borrower from the Principal Collection Account on any Lock-Box Account; providedBusiness Day other than a Payment Date if, howeverboth immediately prior and after giving effect to such payment (i) the Availability is greater than zero and (ii) no Default, that so long as each Event of Default or Curable BDC Asset Coverage Event has occurred and is continuing.
(d) Subject to the satisfaction of the conditions precedent set forth in Section 6.03 are satisfied on such date3.2, the Servicer Collateral Manager may release direct the Collateral Custodian to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower withdraw funds on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections deposit in the following Principal Collection Account on any Business Day in order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall to reinvest such funds in Eligible Loans to be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:pledged hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (New Mountain Finance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent As set forth in Section 6.03 are satisfied the Monthly Report, on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (or, following its assumption of control of Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on amounts on deposit in the Lock-Box Accounts, Collection Account from the Administrative Agent) shall, Collection Account and allocate and distribute such Collections amounts to 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, pari passu, (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, that each of if the parties hereto hereby acknowledge and agree that no Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses; (C) to the Backup Servicer, so long as it has not become the Successor Servicer hereunder, an amount equal to any accrued and unpaid Interest, Fees or Backup Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments)Payment Date, plusany unpaid Backup Servicing Fee from any prior Payment Date, if applicableany reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed to the amount of any such InterestBackup Servicer; and (D) to the Collateral Agent, Fees accrued and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 unpaid Collateral Agent Fee due in respect of such payments) payable for Payment Date, any unpaid Collateral Agent Fee from any prior Interest Period Payment Date, any reasonable out-of-pocket expenses incurred by the Collateral Agent, and any accrued and unpaid Indemnified Amounts owed to the extent such amount has not been distributed Collateral Agent, in the case of clauses (ii)(C) and (ii)(D) prior to such Lender or Credit Partya Termination Event, up to Capped Backup Servicer and Collateral Agent Fees and Expenses, monthly;
(iii) thirdTHIRD, as set forth to the Lenders, pro rata, an amount equal to the sum of any accrued and unpaid (A) Yield and (B) any Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(iv) FOURTH, to the Lenders, pro rata based upon the portion of such amounts owed to each such party, any Indemnified Amounts;
(v) FIFTH, (A) during the Revolving Period, to the Principal Collection Account for application by the Borrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause the Collateral Amount to at least equal the Minimum Collateral Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause 21894287.12 the Adjusted Collateral Amount to equal the Minimum Collateral Amount; and (B) during the Amortization Period, to the Lenders, pro rata, the Principal Distributable Amount, until Capital has been reduced to zero;
(vi) SIXTH, during the Revolving Period, 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 Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(vii) SEVENTH, pari passu, (A) to the Backup Servicer, any amounts owed to the Backup Servicer, to the extent not paid pursuant to clause (xii)(C) and (B) to the Collateral Agent, any accrued fees, reasonable out-of-pocket expenses or Indemnified Amounts to the extent not paid pursuant to clause (ii)(D), in the case of clauses (yii)(C) or and (zii)(D), due to the Capped Backup Servicer and Collateral Agent Fees and Expenses;
(viii) belowEIGHTH, as applicable:to the Lenders for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(ix) NINTH, to the Borrower any remaining amounts.
(b) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(iii) and (v) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer shall pay to the following Persons, from (ori) the Interest Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Collection Period (the sum of such amounts described in clauses (i), (ii) and (iii) being the "Available Collections") the following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the --------------------- following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) firstFIRST, to each Hedge Counterparty, any amounts, including any ----- Hedge Breakage Costs, owing under the Servicer related Hedge Agreement in respect of any Hedge Transaction, for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer)thereof;
(ii) secondSECOND, to each Lender and other Credit Party (ratablythe Servicer, based on the in an amount then due and owing), all equal to its accrued and ------ unpaid Interest, Servicing Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Partyend of the preceding Collection Period;
(iii) thirdTHIRD, to the Servicer, in an amount equal to any Unreimbursed ----- Servicer Advances;
(iv) FOURTH, to the Back-up Servicer, in amount equal to any accrued ------ and unpaid currently due Back-up Servicing Fee, for the payment thereof;
(v) FIFTH, to the Deal Agent for the ratable payment to each Lender, ----- in an amount equal to any accrued and unpaid Interest for such Payment Date;
(vi) SIXTH, to the Deal Agent for the ratable payment to each ----- Lender, in an amount equal to any accrued and unpaid Facility Fee and the Program Fee for such Payment Date;
(vii) SEVENTH, to the Deal Agent, in the amount of unpaid Increased ------- Costs and/or Taxes (if any), for payment to the Lenders in respect thereof; and
(viii) NINTH, (A) if such Payment Date occurs during the Revolving ----- Period, first to the Excess Spread Account, in an amount necessary to cure ----- any Overcollateralization Shortfall on such day, and second all remaining ------ amounts of Available Collections to the Borrower; and (B) if such Payment Date occurs during the Amortization Period, to the Deal Agent for the ratable payment to each Lender in reduction, to zero, of the Advances Outstanding.
(b) On each Payment Date occurring during the Revolving Period, the Borrower shall direct the Servicer, to the extent of any Principal Collections on deposit in the Principal Collection Account as of the last day of the related Collection Period, to use such funds: (i) toward the funding of additional Loans in connection with a Funding Request pursuant to Section 2.1, or (ii) to repay all or any portion of Advances Outstanding in accordance with Sections 2.3 and 2.5 hereof. On each Business Day occurring during the Amortization Period, all Principal Collections on deposit in the Principal Collection Account as of such Payment Date shall be paid to the Deal Agent for the ratable payment to each Lender in reduction, to zero, of the Advances Outstanding.
(c) Notwithstanding anything to the contrary contained in this Section 2.7 or any other provision in this Agreement, if on any Business Day the Availability shall be a negative amount, then the Borrower shall remit to the Deal Agent, prior to any reinvestment of funds on deposit in the Principal Collection Account as set forth in clause (x)Section 2.7(b) and in any event no later than the close of business of the Deal Agent on the next succeeding Business Day, (y) a payment, in such amount as may be necessary to reduce Advances Outstanding to an amount such that the Availability shall be zero or (z) below, as applicable:a positive amount.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (Healthcare Financial Partners Inc)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which All Collections on Pool Receivables shall be an account maintained and controlled by held in the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for Borrower Collection Accounts until their application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 5.03 are satisfied on such datedate (as evidenced by the related Release), the Borrower (or the Initial Servicer may on its behalf) may, subject to Section 3.02, direct the Paying Agent and the Account Bank to release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Initial Purchase and Sale Agreement Agreement, (ii) for payment by the Borrower with respect to any Subordinated Note on any Monthly Settlement Date from available collections under clause (vii) below or (iii) for distribution to the Parent as a return on the Parent’s equity interest in the Borrower on any Monthly Settlement Date from available collections under clause (vii) below (each such release, a “Release”). On each Settlement Date, and to the Servicer extent required in accordance with Section 8.10, the Paying Agent shall (or, following its assumption of control subject to Section 3.02) distribute all Collections received during the related Settlement Period held in the Borrower Collection Accounts and any amounts on deposit in the Interest Reserve Account in excess of the Lock-Box Accounts, Interest Reserve Amount as of such Settlement Date in accordance with the Administrative Agent) shall, distribute such Collections Information Package in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to pay any fees and out-of-pocket expenses and indemnities due the Collateral Agent, Paying Agent, Account Bank and Back-up Servicer, up to an aggregate maximum amount of $150,000 in any given calendar year; provided that, in the event that an Early Amortization Event, Unmatured Initial Servicer Default, Initial Servicer Default, Event of Default or Unmatured Event of Default has occurred and is continuing, the fees and out-of-pocket expenses and indemnities due the Collateral Agent, Paying Agent, Account Bank and Back-up Servicer shall not be subject to such $150,000 maximum amount;
(ii) second, to the Administrative Agent, any out-of-pocket expenses and indemnities due to the Administrative Agent through the related Interest Period
(iii) third, to each Lender and other Credit Party (ratably, based on the amount then due and owing to such Credit Party), all accrued and unpaid Interest, Fees (other than fees payable in accordance with clause (ii) above)) and Breakage Amount due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Amounts (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period;
(iv) fourth, to the Servicer (or, to the extent set forth in the Back-up Servicing Agreement following a Servicing Transfer Date, to the Back-up Servicer and the Initial Servicer) for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(iiv) secondfifth, prior to the occurrence of the Revolving Period Termination Date, to each Lender deposit in the Interest Reserve Account, an amount equal to any Interest Reserve Account Deficit Amount;
(vi) sixth, as set forth in clause (A) or (B) below, as applicable:
(A) prior to the occurrence of the Revolving Period Termination Date, to the extent that a Borrowing Base Deficit exists on such date to the Lenders ratably for the payment of a portion of the outstanding principal amount of the Loans at such time, in an aggregate amount equal to the amount necessary to reduce the Borrowing Base Deficit to zero; or
(B) on and after the occurrence of the Revolving Period Termination Date for the payment in full of the aggregate outstanding principal amount of the Loans;
(vii) seventh, to the Back-up Servicer, the Collateral Agent, the Account Bank, the Paying Agent, the Credit Parties, any other Credit Party Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount then due and owingowing at such time), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period payment of all other Borrower Obligations (including any additional amounts or indemnified amounts payable under Sections 5.03 11.01, any expenses paid as advances by the Back-up Servicer in accordance with the terms of the Back-up Servicing Agreement and 13.01 in respect of such payments)any fees or expenses otherwise payable under clause (i) above) then due and owing by the Borrower to the Back-up Servicer, plusthe Collateral Agent, the Account Bank, Paying Agent, Credit Parties, any other Affected Persons and the Borrower Indemnified Parties; and
(viii) eighth, the balance, if applicableany, to be paid to, or at the direction of, the amount Borrower for its own account.
(b) All payments or distributions to be made to the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties) hereunder shall be paid or at the direction of the Administrative Agent for the benefit of the related Lender at its Lender’s Account. Each Lender, upon its receipt in the applicable Lender’s Account of any such Interestpayments or distributions, Fees shall distribute such amounts to its applicable related Affected Persons and Breakage Fees (including the Borrower Indemnified Parties. Notwithstanding anything to the contrary set forth in this Section 3.01, the Administrative Agent shall have no obligation to distribute or pay any additional amounts or indemnified amounts payable amount under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period this Section 3.01 except to the extent actually received by the Administrative Agent. Each payment by the Servicer or the Borrower to the Administrative Agent for the account of any Credit Party hereunder shall be deemed to constitute payment by the Servicer or the Borrower directly to such amount has not been distributed Credit Party, provided, however, that in the event any such payment by the Servicer or Borrower is required to be returned to the Servicer or Borrower for any reason whatsoever, then the Servicer’s or Borrower’s obligation to such Lender or with respect to such payment shall be deemed to be automatically reinstated. Additionally, each Lender hereby covenants and agrees to provide timely and accurate responses to each of the Administrative Agent’s requests for information necessary for the Administrative Agent to make the allocations to the Lenders required to be made by the Administrative Agent hereunder, including the applicable account of each Lender for which amounts should be distributed.
(c) If and to the extent the Administrative Agent, any Credit Party, any other Secured Party, any Affected Person, any WT Indemnified Party or any Borrower Indemnified Party shall be required for any reason to pay over to any Person any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, such Credit Party, such Affected Person, such WT Indemnified Party or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 3.01:
(i) Deemed Collections payments made by the Originators to the Borrower under the Initial Purchase and Sale Agreement shall be treated as Collections and held for application pursuant to Section 3.01(a);
(iiiii) thirdexcept as otherwise required by Applicable Law or the relevant Contract, as set forth all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in clause 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
(x)e) if and to the extent the Administrative Agent, any Credit Party, any other Secured Party, any other Affected Person, any WT Indemnified Party or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (yor 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 Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Notwithstanding the other provisions of this Section 3.01 or any other term of this Agreement, to the extent that any bank where an Originator Collection Account is held is entitled to an indemnification or expenses claim from the Borrower or (zfollowing the delivery of a notice of control) belowthe Collateral Agent pursuant to the related Account Control Agreement, as applicable:the Borrower or (following the delivery of a notice of control) the Collateral Agent may request a withdrawal from the Borrower Collection Account to satisfy such obligation by delivering a request in writing to the Administrative Agent, the Paying Agent and the Account Bank two Business Days prior to the requested date of the requested payment to the Originator Collection Account Bank. Unless the Administrative Agent shall have delivered written notice of its objection to such payment by 5:00 p.m (New York City time) on the Business Day prior to the requested date of such payment, the Account Bank shall (solely to the extent insufficient cash is available in the Borrower Collection Account) liquidate sufficient Permitted Investments held pursuant to Section 8.10 to make such payment and the Paying Agent shall wire the requested funds to the applicable Originator Collection Account bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Sinclair Broadcast Group Inc)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (orOn each Payment Date, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each no Event of Default has occurred and is continuing, the conditions precedent Loan Manager shall direct the Trustee to pay pursuant to the related Payment Date Statement (and the Trustee shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in Section 6.03 are satisfied on such datePayment Date Statement) to the following Persons, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections amounts in the following order of priority:
(1) pro rata to (i) the Trustee, in an amount equal to any accrued and unpaid Trustee Fees and (ii) the Securities Intermediary, in an amount equal to any amounts payable to the Securities Intermediary under the Securities Account Control Agreement;
(2) to the Loan Manager, in an amount equal to the sum of (A) any accrued and unpaid Senior Loan Management Fee and (B) all reasonable and documented Loan Manager Reimbursable Expenses (not to exceed $30,000 for such Payment Date);
(3) pro rata to each Class A Lender, in an amount equal to any accrued and unpaid Class A Interest and Class A Non-Usage Fee;
(4) pro rata to each Class B Lender, in an amount equal to any accrued and unpaid Class B Interest and Class B Non-Usage Fee;
(5) pro rata to (a) each Lender, in an amount equal to any accrued and unpaid Breakage Costs, and (b) to the Administrative Agent, any applicable Lender, the Trustee, the Indemnified Parties, or the Secured Parties, as applicable, all Fees and other amounts, including, without limitation, any Increased Costs and fees or expenses of counsel, but other than the principal of Advances Outstanding and any Commitment Reduction Fee then due under this Agreement;
(6) pro rata to each Class A Lender, (a) if a Class A Borrowing Base Deficiency exists, in an amount necessary to cure such Class A Borrowing Base Deficiency, pro rata in accordance with the amount of Class A Advances Outstanding hereunder, and (b) if an Interest Coverage Trigger has occurred and is continuing, in an amount necessary to cure such Interest Coverage Trigger, pro rata, in accordance with the amount of Class A Advances Outstanding hereunder;
(7) pro rata to each Class B Lender, (a) if a Class B Borrowing Base Deficiency exists, in an amount necessary to cure such Class B Borrowing Base Deficiency, pro rata in accordance with the amount of Class B Advances Outstanding hereunder, including any replenishment of the Class B Minimum Reserve Amount to the extent then required to be deducted from the Class B Borrowing Base and (b) if an Interest Coverage Trigger has occurred and is continuing, in an amount necessary to cure such Interest Coverage Trigger, pro rata, in accordance with the amount of Class B Advances Outstanding hereunder;
(8) pro rata to each Class A Lender, in an amount equal to (a) any accrued and unpaid Commitment Reduction Fee owing to the Class A Lenders, and (b) if the Class A Facility Amount has been terminated in whole pursuant to Section 2.3(a), the Class A Advances Outstanding;
(9) pro rata to each Class B Lender, in an amount equal to (a) any accrued and unpaid Commitment Reduction Fee owing to the Class B Lenders, and (b) if the Class B Facility Amount has been terminated in whole pursuant to Section 2.3(a), the Class B Advances Outstanding;
(10) to the Expense Reserve Account, in an amount equal to the Expense Reserve Account Amount;
(11) to the Loan Manager, in an amount equal to any accrued and unpaid Subordinated Loan Management Fee;
(12) after the end of the Reinvestment Period, to the Loan Manager in an amount equal to the Accrued Loan Manager Fee;
(13) pro rata to each applicable party to pay all other Administrative Expenses;
(14) to the applicable Governmental Authority, any Tax or withholding Tax which, if not paid, could result in a Lien on any of the Collateral; and
(15) so long as no Default has occurred and is continuing, any remaining amounts shall be deemed released from the Lien of the Trustee hereunder and distributed to the Borrower or any nominee thereof; provided that, notwithstanding the above, if a Class B Lender is an Affiliate of the Loan Manager and the Loan Manager has committed gross negligence or willful misconduct with respect to its obligations under this Agreement, no amounts shall be paid to such Class B Lender in respect of any unpaid Class B Interest or Class B Non-Usage Fee until all Class A Advances Outstanding, Class A Interest and Class A Non-Usage Fees have been repaid in full; provided, however, that the failure to make any payment to any Class B Lender in accordance with the preceding proviso shall not constitute either a Default or an Event of Default hereunder.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the parties hereto hereby acknowledge Loan Manager shall direct the Trustee to pay pursuant to the related Payment Date Statement (and agree that no the Trustee shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Payment Date Statement) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a)(1), pro rata to (i) the Trustee, in an amount equal to any accrued and unpaid Interest, Trustee Fees or Servicing Fees owing as of (ii) the initial Settlement Date shall be Securities Intermediary, in an amount equal to any amounts payable on such Settlement Date and instead such amounts shall be payable on to the following Settlement Date:Securities Intermediary under the Securities Account Control Agreement;
(i2) firstto the extent not paid pursuant to Section 2.7(a)(2), to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plusLoan Manager, if applicable, the in an amount of Servicing Fees payable for any prior Interest Period equal to the extent sum of (A) any accrued and unpaid Senior Loan Management Fee, and (B) all reasonable and documented Loan Manager Reimbursable Expenses (not to exceed $30,000 for such amount has not been distributed to the ServicerPayment Date);
(ii3) secondto the extent not paid pursuant to Section 2.7(a)(3), pro rata to each Lender and other Credit Party (ratablyClass A Lender, based on the in an amount then due and owing), all equal to any accrued and unpaid InterestClass A Interest and Class A Non-Usage Fee;
(4) to the extent not paid pursuant to Section 2.7(a)(4), pro rata to each Class B Lender, in an amount equal to any accrued and unpaid Class B Interest and Class B Non-Usage Fee;
(5) to the extent not paid pursuant to Section 2.7(a)(5), pro rata to (a) each Lender, in an amount equal to any accrued and unpaid Breakage Costs, and (b) to the Administrative Agent, any applicable Lender, the Trustee, the Indemnified Parties, or the Secured Parties, as applicable, all Fees and Breakage Fees other amounts, including, without limitation, any Increased Costs and fees or expenses of counsel, but other than the principal of Advances Outstanding and any Commitment Reduction Fee then due under this Agreement;
(6) to the extent not paid pursuant to Section 2.7(a)(6), pro rata to each Class A Lender, (a) if a Class A Borrowing Base Deficiency exists, in an amount necessary to cure such Class A Borrowing Base Deficiency, pro rata, in accordance with the amount of Class A Advances Outstanding hereunder, and (b) if an Interest Coverage Trigger has occurred and is continuing, in an amount necessary to cure such Interest Coverage Trigger, pro rata in accordance with the amount of Class A Advances Outstanding hereunder;
(7) to the extent not paid pursuant to Section 2.7(a)(7), pro rata to each Class B Lender, (a) if a Class B Borrowing Base Deficiency exists, in an amount necessary to cure such Class B Borrowing Base Deficiency, pro rata, in accordance with the amount of Class B Advances Outstanding hereunder, including any replenishment of the Class B Minimum Reserve Amount to the extent then required to be deducted from the Class B Borrowing Base, and (b) if an Interest Coverage Trigger has occurred and is continuing, in an amount necessary to cure such Interest Coverage Trigger, pro rata in accordance with the amount of Class B Advances Outstanding hereunder;
(8) after the end of the Reinvestment Period, to the Unfunded Exposure Account in an amount equal to the Aggregate Unfunded Exposure Amount minus the amount in the Unfunded Exposure Account as of the related Determination Date;
(9) pro rata to each Class A Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee owing to the Class A Lenders;
(10) pro rata to each Class B Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee owing to the Class B Lenders;
(11) after the end of the Reinvestment Period, pro rata to each Class A Lenders to pay the Class A Advances Outstanding;
(12) after the end of the Reinvestment Period, pro rata to each Class B Lenders to pay the Class B Advances Outstanding;
(13) to the Expense Reserve Account, in an amount equal to the Expense Reserve Account Amount;
(14) to the Loan Manager, in an amount equal to any accrued and unpaid Subordinated Loan Management Fee;
(15) after the end of the Reinvestment Period, to the Loan Manager in an amount equal to the Accrued Loan Manager Fee;
(16) to the extent not paid pursuant to Section 2.7(a), pro rata to each applicable party to pay all other Administrative Expenses;
(17) to the applicable Governmental Authority, any Tax or withholding Tax which, if not paid, could result in a Lien on any of the Collateral; and
(18) so long as no Default has occurred and is continuing, any remaining amounts shall be deemed released from the Lien of the Trustee hereunder and distributed to the Borrower or any nominee thereof; provided that, notwithstanding the above, if a Class B Lender is an Affiliate of the Loan Manager and the Loan Manager has committed gross negligence or willful misconduct with respect to its obligations under this Agreement, no amounts shall be paid to such Class B Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments)any unpaid Class B Interest or Class B Non-Usage Fee until all Class A Advances Outstanding, plusClass A Interest and Class A Non-Usage Fees have been repaid in full. provided, if applicablehowever, the amount failure to make any payment to any Class B Lender in accordance with the preceding proviso shall not constitute either a Default or an Event of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:Default hereunder.
Appears in 1 contract
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit Any Collections of the Secured Parties Purchased Receivables received (or, if so requested or deemed to have been received) by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which Seller shall be an account maintained and controlled remitted directly to EagleFunding 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from depositing such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box AccountsAccount within one Business Day of Seller's receipt (or deemed receipt) thereof. On each Payment Date, the Administrative AgentSeller shall pay to EagleFunding Yield on all outstanding Capital the Purchase Period for which ends on such date.
(b) shall, distribute such Collections in the following order of priority; provided, however, that On each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date to occur prior to the Designated Termination Date, the Seller shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Dateeither:
(i) first, at any time prior to the Servicer for the payment occurrence of the accrued Servicing Fees payable for Termination Date (other than the Designated Termination Date), sell additional Receivables hereunder in accordance with the procedures and subject to the conditions set forth in Section 2.01 such that, immediately preceding Interest Period (plus, if applicablefollowing such Receivables Purchase, the amount of Servicing Fees payable for any prior Interest Period Capital Limit equals or exceeds outstanding Capital, in which event the Deal Agent shall, subject to the extent such amount has not been distributed order of priority set forth in Section 6.11(b), remit the Collections so set aside pursuant to Section 6.11 to the Servicer);Seller in consideration of the purchase price for such Receivables Purchase; or
(ii) secondout of the Collections set aside pursuant to Section 6.11, direct the Deal Agent to remit, 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 Deal Agent, for the benefit of EagleFunding, to each Lender and distribute for application toward the
(d) If on any day the Outstanding Balance of any Purchased Receivable 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 Credit Party adjustment made or performed by the Seller or any other Person (ratablyincluding, based on without limitation, those described in the amount then due and owingdefinition of "Dilution Factors"), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period or (including any additional amounts ii) reduced or indemnified amounts payable under Sections 5.03 and 13.01 canceled as a result of a setoff in respect of any claim by the Obligor thereof against the Seller or any other Person (whether such paymentsclaim arises out of the same or a related transaction or an unrelated transaction), plus, if applicable, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of such reduction, 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 has breached its obligations under Section 5.01(j), then the Seller shall be deemed to have received on such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect day a Collection of such paymentsPurchased Receivable: (x) payable for any prior Interest Period if such representation, warranty or covenant relates to the extent non-existence of any Adverse Claims, the Seller shall be deemed to have received a Collection of such Purchased Receivable in the dollar amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), 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 EagleFunding Purchase Agreement or the perfection of EagleFunding's security interest in any Equipment as against the Obligor thereunder, then the Seller be deemed to have received a Collection of such Purchased Receivable in an amount equal to the Outstanding Balance thereof. To the extent that any such deemed Collection reduces the Outstanding Balance of such Purchased Receivable to zero, then, upon the Seller's payment to the Deal Agent of such deemed Collection, the Deal Agent shall re-assign to the Seller all of its right, title and interest in and to the relevant Purchased Receivable, the Contract under which such Purchased Receivable arose and the Related Security relating thereto.
(ze) belowAlthough the Originator, the Seller and EagleFunding agree that the Originator shall have no right to so terminate, reject or not assume a Contract, if the Originator in its capacity as applicable: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
Appears in 1 contract
Settlement Procedures. (a) The Servicer On each Payment Date, the Collateral Agent shall set aside withdraw Available Funds and hold in trust for the benefit of the Secured Parties any Excess Reserve Amount (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.6(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date;
(ii) Second, [Reserved];
(iii) Third, 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 Payment Date, any unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to Xxxxx Fargo up to $17,000, monthly;
(iv) Fourth, (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, that each 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;
(v) Fifth, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lender, an amount equal to the sum of any accrued and unpaid Interest(A) Interest and Breakage Costs, Fees or Servicing Fees owing as (B) the Program Fee, and (C) the Unused Fee, Increased Costs and any Additional Amounts due in respect of the initial Settlement Date shall be payable on such Settlement Payment Date and instead any such amounts shall be payable on the following Settlement unpaid from any prior Payment Date:;
(ivi) firstSixth, during the Revolving Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lender, an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vii) Seventh, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) Eighth, during the Amortization Period, to the Deal Agent for the immediately preceding Interest Period (plus, if applicableaccount of the Lender, the Additional Principal Payment Amount, until the Aggregate Loan Amount has been reduced to zero;
(ix) Ninth, to the Deal Agent for the account of the Lender and the Backup Servicer, an amount equal to 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 Third above) due in respect of Servicing Fees payable for such Payment Date and unpaid from any prior Interest Period Payment Date;
(x) Tenth, to the extent such Reserve Account, (A) an amount has not been distributed equal to any outstanding Reserve Advances and (B) the Serviceramount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(iixi) secondEleventh, to each Lender and other Credit Party (ratablythe Backup Servicer, based on if it has become the amount then Successor Servicer, any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause Fourth above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) Twelfth, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) Thirteenth, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days' prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lender, to be distributed by the Deal Agent to the Lender, as a payment in reduction of the Aggregate Loan Amount. Notwithstanding anything in this Section 2.6(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, plus, if applicable, the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. No later than 11:00 a.m. (New York City time) (x) on each Payment Date and (y) solely with respect to the payment of Supplemental Fees pursuant to clause (a)(ii) below, on the 15th calendar day of each calendar month (or if such date is not a Business Day the immediately succeeding Business Day) beginning on August 16, 2021 and ending on July 15, 2022 (each, a “Supplemental Fee Payment Date”), the Paying Agent shall, from the Collection Account, to the extent of available funds (such amounts being the “Available Collections”) disburse the following amounts in the following order of priority:
(a) The Servicer shall set aside During the Revolving Period, and hold in trust each case unless otherwise specified below, applying Available Collections:
(i) First, ratably, (A) to the Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the benefit of payment thereof in an aggregate amount not to exceed the Secured Parties Bank Fees and Expenses and the Administrative Expense Cap, and (or, if so requested by B) to the Administrative Agent, segregate in a separate account designated by the an amount equal to any accrued and unpaid Administrative AgentAgent Fee and Administrative Expenses;
(ii) Second, which shall be an account maintained and controlled by to the Administrative Agent unless for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Unused Fee that is due on such Payment Date and any accrued and unpaid Supplemental Fee that is due on such Supplemental Fee Payment Date;
(iii) Third, first, to the Administrative Agent otherwise instructs in its sole discretion)for payment to each Managing Agent, for application in accordance with on behalf of the priority related Lenders, an amount equal to the excess, if any, of payments set forth belowAdvances Outstanding over the Maximum Availability, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Accountpro rata; provided, however, that so long as to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(iv) Fourth, to the Administrative Agent for payment to each Managing Agent, on behalf of the conditions precedent set forth related Lenders, in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount of Increased Costs, and/or Taxes (if any);
(v) necessary Fifth, to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) shallSixth, distribute such Collections in to the following order Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(vii) Seventh, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement DateAvailable Collections:
(i) firstFirst, ratably, (A) to the Servicer Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount not to exceed the Bank Fees and Expenses and the Administrative Expense Cap, provided, that if the Advances have been accelerated following the occurrence and during the continuance of an Event of Default, and the sale of the accrued Servicing Fees payable for the immediately preceding Interest Period Collateral has commenced in connection therewith, such limitations specified therein shall not be given any effect, and (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period B) to the extent such Administrative Agent, in an amount has not been distributed equal to the Servicer)any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(ii) secondSecond, to the Administrative Agent for payment to each Lender and other Credit Party (ratablyManaging Agent, based on behalf of the related Lenders, in an amount then due and owing), all equal to any accrued and unpaid Interest, Fees and Breakage Fees due to Interest for such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPayment Date;
(iii) thirdThird, as set forth to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in clause an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(xiv) Fourth, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs and/or Taxes (if any);
(v) Fifth, to the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(yvi) Sixth, to the Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(zvii) belowSeventh, as applicable:all remaining amounts to the Borrower.
Appears in 1 contract
Settlement Procedures. No later than 11:00 a.m. (New York City time) (x) on each Payment Date and (y) solely with respect to the payment of Supplemental Fees pursuant to clause (a)(ii) below, on the 15th calendar day of each calendar month (or if such date is not a Business Day the immediately succeeding Business Day) beginning on August 16, 2021 and ending on July 15, 2022 (each, a “Supplemental Fee Payment Date”), the Paying Agent shall, from the Collection Account, to the extent of available funds (such amounts being the “Available Collections”) disburse the following amounts in the following order of priority:
(a) The Servicer shall set aside During the Revolving Period, and hold in trust each case unless otherwise specified below, applying Available Collections:
(i) First, ratably, (A) to the Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the benefit of payment thereof in an aggregate amount not to exceed the Secured Parties Bank Fees and Expenses and the Administrative Expense Cap, and (or, if so requested by B) to the Administrative Agent, segregate in a separate account designated by the an amount equal to any accrued and unpaid Administrative AgentAgent Fee and Administrative Expenses;
(ii) Second, which shall be an account maintained and controlled by to the Administrative Agent unless for payment to each Managing Agent, on behalf of the related Lenders, and the Swingline Lender in an amount equal to any accrued and unpaid Interest, Unused Fee that is due on such Payment Date and any accrued and unpaid Supplemental Fee that is due on such Supplemental Fee Payment Date;
(iii) Third, first, to the Administrative Agent otherwise instructs in its sole discretion)for payment to each Managing Agent, for application in accordance with on behalf of the priority related Lenders, an amount equal to the excess, if any, of payments set forth belowAdvances Outstanding over the Maximum Availability, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Accountpro rata; provided, however, that so long as to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(iv) Fourth, to the Administrative Agent for payment to each Managing Agent, on behalf of the conditions precedent set forth related Lenders, in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount of Increased Costs, and/or Taxes (if any);
(v) necessary Fifth, to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) shallSixth, distribute such Collections in to the following order Bank Parties, all other amounts then due under this Agreement or the other Transaction Documents to the Bank Parties, for the payment thereof; and
(vii) Seventh, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement DateAvailable Collections:
(i) firstFirst, ratably, (A) to the Servicer Bank Parties in an amount equal to any accrued and unpaid Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount not to exceed the Bank Fees and Expenses and the Administrative Expense Cap, provided, that if the Advances have been accelerated following the occurrence and during the continuance of an Event of Default, and the sale of the accrued Servicing Fees payable for the immediately preceding Interest Period Collateral has commenced in connection therewith, such limitations specified therein shall not be given any effect, and (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period B) to the extent such Administrative Agent, in an amount has not been distributed equal to the Servicer)any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(ii) secondSecond, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, and the Swingline Lender and other Credit Party (ratably, based on the in an amount then due and owing), all equal to any accrued and unpaid Interest, Fees and Breakage Fees due to Interest for such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit PartyPayment Date;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
Appears in 1 contract
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Servicer (orshall instruct the Account Bank to pay, to the following its assumption Persons, from the Collection Account to the extent of control of 56 Available Funds the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections following amounts in the following order of priority; provided, however, that each of the parties hereto hereby acknowledge and agree that no accrued and unpaid Interest, Fees or Servicing Fees owing as of the initial Settlement Date shall be payable on such Settlement Date and instead such amounts shall be payable on the following Settlement Date:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause the related Monthly Report: (xi) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances, to the extent not previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (yiii) or Third, pro rata (zA) belowto the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (other than Hedge Breakage Costs), and (B) to the Administrative Agent (based on amounts due to the members of each Lender Group pursuant to this subclause), for further payment to each Lender, an amount equal to the sum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent (based on Lender Percentage) for further payment to each Lender, the Monthly Principal Payment Amount; (vi) Sixth, if the Termination Date has not occurred but a Partial Expiration Event has occurred, pro rata to the Administrative Agent for a Lender Group that includes a Non-Extending Lender (based on the Loans Outstanding to each such Non-Extending Lender) for further payment to each Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender's Invested Percentage as applicable:of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, to the Administrative Agent (based on the amount of the Subordinated Monthly Interest Payment Amount due to members of the related 57
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, 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 Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Payment Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount, Reserve Advances and Servicer (or, following its assumption of control of Advances and investment earnings on amounts on deposit in the Lock-Box Accounts, Collection Account from the Administrative Agent) shall, Collection Account and allocate and distribute such Collections amounts to 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Servicer, an amount equal to any Unreimbursed Servicer Advances;
(iii) THIRD, 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 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;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (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;
(vi) SIXTH, during the Revolving Period, to the Deal Agent for the account of the initial Settlement Date shall be payable on Lenders, an amount equal to the Monthly Principal Payment Amount for such Settlement Date and instead such amounts shall be payable on the following Settlement Payment Date:;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, (i) firstduring the Revolving Period with respect to each Dissenting Investor, pro rata, an amount equal to its outstanding Capital until such Dissenting Investor's Capital has been reduced to zero and (ii) during the Amortization Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(ix) NINTH, to the Deal Agent for the immediately preceding Interest Period account of the Lenders and the Backup Servicer, an amount equal to Increased Costs, any Additional Amounts and Indemnified Amounts (plusprovided that, if applicablewith respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) an amount equal to cause the amount of Servicing Fees payable for on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any prior Interest Period to the extent such amount has not been distributed to the Servicerdeposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments)Payment Date, plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent not paid pursuant to clause FOURTH above and any such amount has not been distributed to such Lender or Credit PartyServicing Fee unpaid from any prior Payment Date;
(iiixii) thirdTWELFTH, as set forth to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in clause full;
(x)xiii) THIRTEENTH, to the Borrower any remaining amounts.
(yb) or [Reserved].
(zc) below(i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to such shortfall (such withdrawal, as applicable:a "Reserve Advance") and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corporation)
Settlement Procedures. (a) The On each Payment Date, the Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and Servicer shall set aside and hold in trust for the benefit of the Secured Parties Advances (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall to be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application applied in accordance with Section 2.7(c)) and investment earnings on amounts on deposit in the priority of payments set forth below, all Collections on Pool Receivables that are received by Collection Account from the Servicer or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on Collection Account and allocate and distribute such date, the Servicer may release amounts to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections 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 Hedge Costs (exclusive of termination payments) unpaid from any prior Payment Date.
(ii) SECOND, to the Servicer, an amount equal to any Unreimbursed Servicer Advances;
(iii) THIRD, 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 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;
(iv) FOURTH, (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, that each 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;
(v) FIFTH, to the Deal Agent for the account of the parties hereto hereby acknowledge and agree that no Lenders, an amount equal to the sum of any accrued and unpaid Interest(A) Yield and Breakage Costs, Fees or Servicing Fees owing as (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;
(vi) SIXTH, during the Revolving Period, to the Deal Agent for the account of the initial Settlement Date shall be payable on Lenders, an amount equal to the Monthly Principal Payment Amount for such Settlement Date and instead such amounts shall be payable on the following Settlement Payment Date:;
(vii) SEVENTH, to any Successor Servicer, an amount equal to Reliening Expenses;
(viii) EIGHTH, (i) firstduring the Revolving Period with respect to each Dissenting Investor, pro rata, an amount equal to its outstanding Capital until such Dissenting Investor’s Capital has been reduced to zero and (ii) during the Amortization Period, to the Servicer Deal Agent for the payment account of the accrued Servicing Fees payable Lenders, pro rata, the Additional Principal Payment Amount, until Capital has been reduced to zero;
(ix) NINTH, to the Deal Agent for the immediately preceding Interest Period account of the Lenders and the Backup Servicer, an amount equal to Increased Costs, any Additional Amounts and Indemnified Amounts (plusprovided that, if applicablewith respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Reserve Account, (A) an amount equal to any outstanding Reserve Advances and (B) the amount of Servicing Fees payable for necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any prior Interest Period to the extent such amount has not been distributed to the Servicerdeposits made in subclause (A));
(iixi) secondELEVENTH, to each Lender and other Credit Party (ratablythe Backup Servicer, based on the amount then any Servicing Fee due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such paymentsPayment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to the Deal Agent for the account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days’ prior written request of the Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an Officer of the Servicer or a representative of the Servicer designated by an 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 end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xii), plus, if applicable, .
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of any funds on deposit in the Reserve Account (such Interestwithdrawal, Fees a “Reserve Advance”) and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of deposit such payments) payable for any prior Interest Period amount to the extent Collection Account. The Collateral Agent shall pay such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corporation)
