Australian Eligible Accounts. On any date of determination of the Australian Borrowing Base, all of the Accounts owned by the Australian Borrowers and reflected in the most recent Borrowing Base Certificate delivered by the Australian Borrowers to the Administrative Agent shall be “Australian Eligible Accounts” for the purposes of this Agreement, except any Account to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Agent shall have the right from time to time in its Permitted Discretion to establish, modify or eliminate Reserves against Australian Eligible Accounts. Australian Eligible Accounts shall not include any of the following Accounts: (i) any Account in which the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties, does not have a perfected, first priority Lien (including under the relevant laws of the Account Debtor’s jurisdiction of organization) (subject to Liens permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that have priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion); (ii) any Account that is subject to any Lien (including Permitted Liens) other than (A) a Lien in favor of the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties; (B) a Permitted Lien which does not have priority over the Lien in favor of the Collateral Agent or the Australian Security Trustee; and (C) a Lien permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that has priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion; (iii) any Account that is not owned by an Australian Borrower; (iv) any Account due from an Account Debtor that is either (x) not domiciled in an Eligible Account Debtor Jurisdiction or (y) (if not a natural Person) organized or incorporated under the laws of an Eligible Account Debtor Jurisdiction unless (A) such Account is backed by an irrevocable letter of credit or other credit support, in each case, reasonably acceptable to the Administrative Agent and which is in the possession of, and is directly drawable by, the Administrative Agent; (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent; or (C) (1) such Account Debtor is an Eligible Multinational Account Debtor and (2) such Account Debtor’s securities are rated BBB- or better by S&P or Baa3 or better by Xxxxx’x; provided that the sum of all Australian Eligible Accounts, Dutch Eligible Accounts and U.S. Eligible Accounts, in the aggregate, due from all Eligible Multinational Account Debtors shall not exceed $20.0 million; (v) any Account that is payable in any currency other than dollars, Australian Dollars, Canadian Dollars, euros, Krone, Kronor, New Zealand Dollars, Sterling or Yen; (vi) any Account that does not arise from the sale of goods or the performance of services by the Australian Borrowers in the ordinary course of their business unless such Account (A) arises from the sale of goods or the performance of services by Tronox Bahamas in the ordinary course of business; (B) has been purchased by an Australian Borrower; and (C) otherwise qualifies as an Australian Eligible Account in accordance with this Section 2.21(a); (vii) any Account that does not comply in all material respects with all applicable legal requirements, including, without limitation, all laws, rules, regulations and orders of any Governmental Authority; (viii) any Account (A) to the extent that the applicable Australian Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever unless such condition is satisfied (for so long as such condition remains unsatisfied); (B) as to which the applicable Australian Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial or administrative process or otherwise; or (C) to the extent that it represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to the applicable Australian Borrower’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer; (ix) to the extent that any defense, counterclaim, setoff or dispute is or has been asserted as to such Account, it being understood that the remaining balance of the Account shall be eligible; (x) any Account that is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor; (xi) any Account with respect to which an invoice or other electronic transmission constituting a request for payment, acceptable to the Administrative Agent in form and substance (it being agreed that forms or transmissions substantially similar to those used in Accounts included in the Australian Borrowing Base as of the Closing Date are deemed to be acceptable) and which complies in all material respects, if applicable, with the Australian GST Act requirements, has not been sent on a timely basis to, and received by, the applicable Account Debtor, in each case, according to the normal invoicing and timing procedures of the applicable Australian Borrower; (xii) any Account that arises from a sale to any director, officer, other employee or Affiliate of any Loan Party; (xiii) to the extent any Borrower, Guarantor or Subsidiary is liable for goods sold or services rendered by the applicable Account Debtor to any Borrower, Guarantor or Subsidiary or for which a Borrower, Guarantor or Subsidiary is liable for a rebate or has accrued a reserve for such Account but only to the extent of the potential offset, rebate or reserve; (xiv) any Account that arises with respect to goods that are delivered on a xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional; (xv) any Account as to which any of the following applies: (A) any Account not paid within 120 days following its original invoice date or that is more than 60 days past due according to its original terms of sale; or (B) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, the Account Debtor obligated upon such Account suspends its business (taken as a whole), makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or (C) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, a petition is filed by or against any Account Debtor obligated upon such Account under any Debtor Relief Law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors; (xvi) any Account that is the obligation of an Account Debtor if 50% or more of the dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in Section 2.21(a)(xv); (xvii) any Account as to which any of the representations or warranties in the Loan Documents are untrue; (xviii) to the extent such Account is evidenced by a judgment; (xix) any Account that is the obligation of an Account Debtor whose total obligations owing to all of the Borrowers exceed (A) with respect to Xxxxxxx Xxxxxxxx, forty (40%) percent of all Eligible Accounts, (B) with respect to each of AKZO Nobel, Xxxxxxxx Xxxxx and PPG Industries, individually, twenty-five (25%) percent of all Eligible Accounts, or (C) with respect to all other Account Debtors, individually, fifteen (15%) percent of all Eligible Accounts, in each case to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, however, that in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit; (xx) any Account on which the Account Debtor is a Governmental Authority (other than a Governmental Authority representing the Crown in Australia), unless (A) if the Account Debtor is the United States of America, any State or political subdivision thereof or any department, agency or instrumentality of the United States of America or any State or political subdivision thereof, the applicable Australian Borrower has assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to the Assignment of Claims Act of 1940, as amended, in the case of any such federal Governmental Authority, and pursuant to any requirements of applicable Requirements of Law, if any, in the case of any such other Governmental Authority; and (B) if the Account Debtor is any other Governmental Authority, the applicable Australian Borrower has, if required by any applicable Requirements of Law, assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to applicable Requirements of Law, if any, and, in each such case where such acceptance and acknowledgment is required by applicable Requirements of Law, such assignment has been accepted and acknowledged by the appropriate government officers to the extent so required; (xxi) any Account that is owed by an Account Debtor located in any jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless the applicable Australian Borrower has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent the applicable Australian Borrower may qualify subsequently as a foreign entity authorized to transact business in such jurisdiction and gain access to such courts, without incurring any cost or penalty reasonably viewed by the Administrative Agent to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account; (xxii) any Account that is not freely assignable by the applicable Australian Borrower without consent of the Account Debtor (unless such irrevocable and unconditional consent has been obtained from the relevant Account Debtor); (xxiii) any Account that arises under a contract governed by the laws of any jurisdiction other than any Eligible Account Debtor Jurisdiction; or (xxiv) any Account that the Administrative Agent determine in its Permitted Discretion may not be paid by reason of the Account Debtor’s inability to pay or which the Administrative Agent otherwise determine in its Permitted Discretion is unacceptable for any reason whatsoever (in which event the Administrative Agent shall provide notice and be available to discuss in accordance with the procedures set forth in the definition of “Permitted Discretion”).
Appears in 1 contract
Samples: Revolving Syndicated Facility Agreement (Tronox LTD)
Australian Eligible Accounts. On any date of determination of the Australian Borrowing Base, all of the Accounts owned by the Australian Borrowers and reflected in the most recent Borrowing Base Certificate delivered by the Australian Borrowers to the Administrative Agent shall be “Australian Eligible Accounts” for the purposes of this Agreement, except any Account to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Agent shall have the right from time to time in its Permitted Discretion to establish, modify or eliminate Reserves against Australian Eligible Accounts. Australian Eligible Accounts shall not include any of the following Accounts:
(i) any Account in which the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties, does not have a perfected, first priority Lien (including under the relevant laws of the Account Debtor’s jurisdiction of organization) (subject to Liens permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that have priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion);
(ii) any Account that is subject to any Lien (including Permitted Liens) other than (A) a Lien in favor of the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties; (B) a Permitted Lien which does not have priority over the Lien in favor of the Collateral Agent or the Australian Security Trustee; and (C) a Lien permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that has priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion;
(iii) any Account that is not owned by an Australian Borrower;
(iv) any Account due from an Account Debtor that is either (x) not domiciled in an Eligible Account Debtor Jurisdiction or (y) (if not a natural Person) organized or incorporated under the laws of an Eligible Account Debtor Jurisdiction unless (A) such Account is backed by an irrevocable letter of credit or other credit support, in each case, reasonably acceptable to the Administrative Agent and which is in the possession of, and is directly drawable by, the Administrative Agent; (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent; or (C) (1) such Account Debtor is an Eligible Multinational Account Debtor and (2) such Account Debtor’s securities are rated BBB- or better by S&P or Baa3 or better by Xxxxx’xMoody’s; provided that the sum of all Australian Eligible Accounts, Dutch Eligible Accounts and U.S. Eligible Accounts, in the aggregate, due from all Eligible Multinational Account Debtors shall not exceed $20.0 million;
(v) any Account that is payable in any currency other than dollars, Australian Dollars, Canadian Dollars, euros, Krone, Kronor, New Zealand Dollars, Sterling or Yen;
(vi) any Account that does not arise from the sale of goods or the performance of services by the Australian Borrowers in the ordinary course of their business unless such Account (A) arises from the sale of goods or the performance of services by Tronox Bahamas in the ordinary course of business; (B) has been purchased by an Australian Borrower; and (C) otherwise qualifies as an Australian Eligible Account in accordance with this Section 2.21(a);
(vii) any Account that does not comply in all material respects with all applicable legal requirements, including, without limitation, all laws, rules, regulations and orders of any Governmental Authority;
(viii) any Account (A) to the extent that the applicable Australian Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever unless such condition is satisfied (for so long as such condition remains unsatisfied); (B) as to which the applicable Australian Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial or administrative process or otherwise; or (C) to the extent that it represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to the applicable Australian Borrower’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;
(ix) to the extent that any defense, counterclaim, setoff or dispute is or has been asserted as to such Account, it being understood that the remaining balance of the Account shall be eligible;
(x) any Account that is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor;
(xi) any Account with respect to which an invoice or other electronic transmission constituting a request for payment, acceptable to the Administrative Agent in form and substance (it being agreed that forms or transmissions substantially similar to those used in Accounts included in the Australian Borrowing Base as of the Closing Date are deemed to be acceptable) and which complies in all material respects, if applicable, with the Australian GST Act requirements, has not been sent on a timely basis to, and received by, the applicable Account Debtor, in each case, according to the normal invoicing and timing procedures of the applicable Australian Borrower;
(xii) any Account that arises from a sale to any director, officer, other employee or Affiliate of any Loan Party;
(xiii) to the extent any Borrower, Guarantor or Subsidiary is liable for goods sold or services rendered by the applicable Account Debtor to any Borrower, Guarantor or Subsidiary or for which a Borrower, Guarantor or Subsidiary is liable for a rebate or has accrued a reserve for such Account but only to the extent of the potential offset, rebate or reserve;
(xiv) any Account that arises with respect to goods that are delivered on a xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;
(xv) any Account as to which any of the following applies:
(A) any Account not paid within 120 days following its original invoice date or that is more than 60 days past due according to its original terms of sale; or
(B) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, the Account Debtor obligated upon such Account suspends its business (taken as a whole), makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or
(C) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, a petition is filed by or against any Account Debtor obligated upon such Account under any Debtor Relief Law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;
(xvi) any Account that is the obligation of an Account Debtor if 50% or more of the dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in Section 2.21(a)(xv);
(xvii) any Account as to which any of the representations or warranties in the Loan Documents are untrue;
(xviii) to the extent such Account is evidenced by a judgment;
(xix) any Account that is the obligation of an Account Debtor whose total obligations owing to all of the Borrowers exceed (A) with respect to Xxxxxxx Xxxxxxxx, forty (40%) percent of all Eligible Accounts, (B) with respect to each of AKZO Nobel, Xxxxxxxx Xxxxx and PPG Industries, individually, twenty-five (25%) percent of all Eligible Accounts, or (C) with respect to all other Account Debtors, individually, fifteen (15%) percent of all Eligible Accounts, in each case to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, however, that in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(xx) any Account on which the Account Debtor is a Governmental Authority (other than a Governmental Authority representing the Crown in Australia), unless (A) if the Account Debtor is the United States of America, any State or political subdivision thereof or any department, agency or instrumentality of the United States of America or any State or political subdivision thereof, the applicable Australian Borrower has assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to the Assignment of Claims Act of 1940, as amended, in the case of any such federal Governmental Authority, and pursuant to any requirements of applicable Requirements of Law, if any, in the case of any such other Governmental Authority; and (B) if the Account Debtor is any other Governmental Authority, the applicable Australian Borrower has, if required by any applicable Requirements of Law, assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to applicable Requirements of Law, if any, and, in each such case where such acceptance and acknowledgment is required by applicable Requirements of Law, such assignment has been accepted and acknowledged by the appropriate government officers to the extent so required;
(xxi) any Account that is owed by an Account Debtor located in any jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless the applicable Australian Borrower has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent the applicable Australian Borrower may qualify subsequently as a foreign entity authorized to transact business in such jurisdiction and gain access to such courts, without incurring any cost or penalty reasonably viewed by the Administrative Agent to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account;
(xxii) any Account that is not freely assignable by the applicable Australian Borrower without consent of the Account Debtor (unless such irrevocable and unconditional consent has been obtained from the relevant Account Debtor);
(xxiii) any Account that arises under a contract governed by the laws of any jurisdiction other than any Eligible Account Debtor Jurisdiction; or
(xxiv) any Account that the Administrative Agent determine in its Permitted Discretion may not be paid by reason of the Account Debtor’s inability to pay or which the Administrative Agent otherwise determine in its Permitted Discretion is unacceptable for any reason whatsoever (in which event the Administrative Agent shall provide notice and be available to discuss in accordance with the procedures set forth in the definition of “Permitted Discretion”).
Appears in 1 contract
Samples: Revolving Syndicated Facility Agreement (Tronox LTD)
Australian Eligible Accounts. On any date of determination of the Australian Borrowing Base, all of the Accounts owned by the Australian Borrowers and reflected in the most recent Borrowing Base Certificate delivered by the Australian Borrowers to the Administrative Agent shall be “Australian Eligible Accounts” for the purposes of this Agreement, except any Account to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Agent shall have the right from time to time in its Permitted Discretion to establish, modify or eliminate Reserves against Australian Eligible Accounts. Australian Eligible Accounts shall not include any of the following Accounts:
(i) any Account in which the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties, does not have a perfected, first priority Lien (including under the relevant laws of the Account Debtor’s jurisdiction of organization) (subject to Liens permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that have priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion);
(ii) any Account that is subject to any Lien (including Permitted Liens) other than (A) a Lien in favor of the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties; (B) a Permitted Lien which does not have priority over the Lien in favor of the Collateral Agent or the Australian Security Trustee; and (C) a Lien permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that has priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion;
(iii) any Account that is not owned by an Australian Borrower;
(iv) any Account due from an Account Debtor that is either (x) not domiciled in an Eligible Account Debtor Jurisdiction or (y) (if not a natural Person) organized or incorporated under the laws of an Eligible Account Debtor Jurisdiction unless (A) such Account is backed by an irrevocable letter of credit or other credit support, in each case, reasonably acceptable to the Administrative Agent and which is in the possession of, and is directly drawable by, the Administrative Agent; (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent; or (C) (1) such Account Debtor is an Eligible Multinational Account Debtor and (2) such Account Debtor’s securities are rated BBB- or better by S&P or Baa3 or better by Xxxxx’xMoody’s; provided that the sum of all Australian Eligible Accounts, Dutch Eligible Accounts and U.S. Eligible Accounts, in the aggregate, due from all Eligible Multinational Account Debtors shall not exceed $20.0 million22,500,000;
(v) any Account that is payable in any currency other than dollars, Australian Dollars, Canadian Dollars, euros, Krone, Kronor, New Zealand Dollars, Sterling or Yen;
(vi) any Account that does not arise from the sale of goods or the performance of services by the Australian Borrowers in the ordinary course of their business unless such Account (A) arises from the sale of goods or the performance of services by Tronox Bahamas in the ordinary course of business; (B) has been purchased by an Australian Borrower; and (C) otherwise qualifies as an Australian Eligible Account in accordance with this Section 2.21(a);
(vii) any Account that does not comply in all material respects with all applicable legal requirements, including, without limitation, all laws, rules, regulations and orders of any Governmental Authority;
(viii) any Account (A) to the extent that the applicable Australian Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever unless such condition is satisfied (for so long as such condition remains unsatisfied); (B) as to which the applicable Australian Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial or administrative process or otherwise; or (C) to the extent that it represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to the applicable Australian Borrower’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;
(ix) to the extent that any defense, counterclaim, setoff or dispute is or has been asserted as to such Account, it being understood that the remaining balance of the Account shall be eligible;
(x) any Account that is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor;
(xi) any Account with respect to which an invoice or other electronic transmission constituting a request for payment, reasonably acceptable to the Administrative Agent in form and substance (it being agreed that forms or transmissions substantially similar to those used in Accounts included in the Australian Borrowing Base as of the Closing Date are deemed to be acceptable) and which complies in all material respects, if applicable, with the Australian GST Act requirements, has not been sent on a timely basis to, and received by, the applicable Account Debtor, in each case, according to the normal invoicing and timing procedures of the applicable Australian Borrower;
(xii) any Account that arises from a sale to any director, officer, other employee or Affiliate of any Loan Party;
(xiii) to the extent any Borrower, Guarantor or Restricted Subsidiary is liable for goods sold or services rendered by the applicable Account Debtor to any Borrower, Guarantor or Restricted Subsidiary or for which a Borrower, Guarantor or Restricted Subsidiary is liable for a rebate or has accrued a reserve for such Account but only to the extent of the potential offset, rebate or reserve;
(xiv) any Account that arises with respect to goods that are delivered on a xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;
(xv) any Account as to which any of the following applies:
(A) any Account Account, except to the extent constituting an Extended Term Account, not paid within 120 days following its original invoice date or that is more than 60 days past due according to its original terms of sale; or
(B) [intentionally omitted]; or
(C) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, the Account Debtor obligated upon such Account suspends its business (taken as a whole), makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or
(CD) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, a petition is filed by or against any Account Debtor obligated upon such Account under any Debtor Relief Law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;
(xvi) any Account that is the obligation of an Account Debtor if 50% or more of the dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in Section 2.21(a)(xv);
(xvii) any Account as to which any of the representations or warranties in the Loan Documents are untrue;
(xviii) to the extent such Account is evidenced by a judgment;
(xix) any Account that is the obligation of an Account Debtor whose total obligations owing to all of the Borrowers exceed (A) with respect to PPG Industries Inc., forty-five (45%) percent of all Eligible Accounts, (B) with respect to Xxxxxxx Xxxxxxxx, forty (40%) percent of all Eligible Accounts, (BBC) with respect to each of AKZO Nobel, thirty (30%) percent of all Eligible Accounts, (D) with respect to Xxxxxxxx Xxxxx and PPG Industries, individually, twenty-five (25%) percent of all Eligible Accounts, or (CCE) with respect to each of Valspar Corporation and Valspar Sourcing, Inc., twenty (20%) percent, or (F) with respect to all other Account Debtors, individually, fifteen (15%) percent of all Eligible Accounts, in each case to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, however, that in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(xx) any Account on which the Account Debtor is a Governmental Authority (other than a Governmental Authority representing the Crown in Australia), unless (A) if the Account Debtor is the United States of America, any State or political subdivision thereof or any department, agency or instrumentality of the United States of America or any State or political subdivision thereof, the applicable Australian Borrower has assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to the Assignment of Claims Act of 1940, as amended, in the case of any such federal Governmental Authority, and pursuant to any requirements of applicable Requirements of Law, if any, in the case of any such other Governmental Authority; and (B) if the Account Debtor is any other Governmental Authority, the applicable Australian Borrower has, if required by any applicable Requirements of Law, assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to applicable Requirements of Law, if any, and, in each such case where such acceptance and acknowledgment is required by applicable Requirements of Law, such assignment has been accepted and acknowledged by the appropriate government officers to the extent so required;
(xxi) any Account that is owed by an Account Debtor located in any jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless the applicable Australian Borrower has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent the applicable Australian Borrower may qualify subsequently as a foreign entity authorized to transact business in such jurisdiction and gain access to such courts, without incurring any cost or penalty reasonably viewed by the Administrative Agent to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account;
(xxii) any Account that is not freely assignable by the applicable Australian Borrower without consent of the Account Debtor (unless such irrevocable and unconditional consent has been obtained from the relevant Account Debtor);
(xxiii) any Account that arises under a contract governed by the laws of any jurisdiction other than any Eligible Account Debtor Jurisdiction; or
(xxiv) any Account that the Administrative Agent determine in its Permitted Discretion may not be paid by reason of the Account Debtor’s inability to pay or which the Administrative Agent otherwise determine in its Permitted Discretion is unacceptable for any reason whatsoever (in which event the Administrative Agent shall provide notice and be available to discuss in accordance with the procedures set forth in the definition of “Permitted Discretion”).;
Appears in 1 contract
Samples: Revolving Syndicated Facility Agreement (Tronox LTD)
Australian Eligible Accounts. On any date of determination of the Australian Borrowing Base, all of the Accounts owned by the Australian Borrowers and reflected in the most recent Borrowing Base Certificate delivered by the Australian Borrowers to the Administrative Agent shall be “Australian Eligible Accounts” for the purposes of this Agreement, except any Account to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Agent shall have the right from time to time in its Permitted Discretion to establish, modify or eliminate Reserves against Australian Eligible Accounts. Australian Eligible Accounts shall not include any of the following Accounts:
(i) any Account in which the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties, does not have a perfected, first priority Lien (including under the relevant laws of the Account Debtor’s jurisdiction of organization) (subject to Liens permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that have priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion);
(ii) any Account that is subject to any Lien (including Permitted Liens) other than (A) a Lien in favor of the Collateral Agent (or the Australian Security Trustee), on behalf of the Secured Parties; (B) a Permitted Lien which does not have priority over the Lien in favor of the Collateral Agent or the Australian Security Trustee; and (C) a Lien permitted under Section 6.02(b), Section 6.02(d)(i) or Section 6.02(i) that has priority as a matter of law and, in each case, as to which the Administrative Agent may establish a Reserve in its Permitted Discretion;
(iii) any Account that is not owned by an Australian Borrower;
(iv) any Account due from an Account Debtor that is either (x) not domiciled in an Eligible Account Debtor Jurisdiction or (y) (if not a natural Person) organized or incorporated under the laws of an Eligible Account Debtor Jurisdiction unless (A) such Account is backed by an irrevocable letter of credit or other credit support, in each case, reasonably acceptable to the Administrative Agent and which is in the possession of, and is directly drawable by, the Administrative Agent; (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent; or (C) (1) such Account Debtor is an Eligible Multinational Account Debtor and (2) such Account Debtor’s securities are rated BBB- or better by S&P or Baa3 or better by Xxxxx’xMoody’s; provided that the sum of all Australian Eligible Accounts, Dutch Eligible Accounts and U.S. Eligible Accounts, in the aggregate, due from all Eligible Multinational Account Debtors shall not exceed $20.0 million22,500,000;
(v) any Account that is payable in any currency other than dollars, Australian Dollars, Canadian Dollars, euros, Krone, Kronor, New Zealand Dollars, Sterling or Yen;
(vi) any Account that does not arise from the sale of goods or the performance of services by the Australian Borrowers in the ordinary course of their business unless such Account (A) arises from the sale of goods or the performance of services by Tronox Bahamas in the ordinary course of business; (B) has been purchased by an Australian Borrower; and (C) otherwise qualifies as an Australian Eligible Account in accordance with this Section 2.21(a);
(vii) any Account that does not comply in all material respects with all applicable legal requirements, including, without limitation, all laws, rules, regulations and orders of any Governmental Authority;
(viii) any Account (A) to the extent that the applicable Australian Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever unless such condition is satisfied (for so long as such condition remains unsatisfied); (B) as to which the applicable Australian Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial or administrative process or otherwise; or (C) to the extent that it represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to the applicable Australian Borrower’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;
(ix) to the extent that any defense, counterclaim, setoff or dispute is or has been asserted as to such Account, it being understood that the remaining balance of the Account shall be eligible;
(x) any Account that is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor;
(xi) any Account with respect to which an invoice or other electronic transmission constituting a request for payment, reasonably acceptable to the Administrative Agent in form and substance (it being agreed that forms or transmissions substantially similar to those used in Accounts included in the Australian Borrowing Base as of the Closing Date are deemed to be acceptable) and which complies in all material respects, if applicable, with the Australian GST Act requirements, has not been sent on a timely basis to, and received by, the applicable Account Debtor, in each case, according to the normal invoicing and timing procedures of the applicable Australian Borrower;
(xii) any Account that arises from a sale to any director, officer, other employee or Affiliate of any Loan Party;
(xiii) to the extent any Borrower, Guarantor or Restricted Subsidiary is liable for goods sold or services rendered by the applicable Account Debtor to any Borrower, Guarantor or Restricted Subsidiary or for which a Borrower, Guarantor or Restricted Subsidiary is liable for a rebate or has accrued a reserve for such Account but only to the extent of the potential offset, rebate or reserve;
(xiv) any Account that arises with respect to goods that are delivered on a xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;
(xv) any Account as to which any of the following applies:
(A) any Account Account, except to the extent constituting an Extended Term Account, not paid within 120 days following its original invoice date or that is more than 60 days past due according to its original terms of sale; or
(B) [intentionally omitted]; or
(C) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, the Account Debtor obligated upon such Account suspends its business (taken as a whole), makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or
(CD) to the extent known or reasonably knowable by the Borrowers or the Administrative Agent, a petition is filed by or against any Account Debtor obligated upon such Account under any Debtor Relief Law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;
(xvi) any Account that is the obligation of an Account Debtor if 50% or more of the dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in Section 2.21(a)(xv);
(xvii) any Account as to which any of the representations or warranties in the Loan Documents are untrue;
(xviii) to the extent such Account is evidenced by a judgment;
(xix) any Account that is the obligation of an Account Debtor whose total obligations owing to all of the Borrowers exceed (A) with respect to Xxxxxxx Xxxxxxxx, forty (40%) percent of all Eligible Accounts, (B) with respect to each of AKZO Nobel, Xxxxxxxx Xxxxx and PPG Industries, individually, twenty-five (25%) percent of all Eligible Accounts, or (C) with respect to all other Account Debtors, individually, fifteen (15%) percent of all Eligible Accounts, in each case to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, however, that in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(xx) any Account on which the Account Debtor is a Governmental Authority (other than a Governmental Authority representing the Crown in Australia), unless (A) if the Account Debtor is the United States of America, any State or political subdivision thereof or any department, agency or instrumentality of the United States of America or any State or political subdivision thereof, the applicable Australian Borrower has assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to the Assignment of Claims Act of 1940, as amended, in the case of any such federal Governmental Authority, and pursuant to any requirements of applicable Requirements of Law, if any, in the case of any such other Governmental Authority; and (B) if the Account Debtor is any other Governmental Authority, the applicable Australian Borrower has, if required by any applicable Requirements of Law, assigned its rights to payment of such Account to the Collateral Agent or the Australian Security Trustee pursuant to applicable Requirements of Law, if any, and, in each such case where such acceptance and acknowledgment is required by applicable Requirements of Law, such assignment has been accepted and acknowledged by the appropriate government officers to the extent so required;
(xxi) any Account that is owed by an Account Debtor located in any jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless the applicable Australian Borrower has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent the applicable Australian Borrower may qualify subsequently as a foreign entity authorized to transact business in such jurisdiction and gain access to such courts, without incurring any cost or penalty reasonably viewed by the Administrative Agent to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account;
(xxii) any Account that is not freely assignable by the applicable Australian Borrower without consent of the Account Debtor (unless such irrevocable and unconditional consent has been obtained from the relevant Account Debtor);
(xxiii) any Account that arises under a contract governed by the laws of any jurisdiction other than any Eligible Account Debtor Jurisdiction; or;
(xxiv) any Account that provides for payment terms greater than 60 days; or
(xxv) any Account that the Administrative Agent determine determines in its Permitted Discretion may not be paid by reason of the Account Debtor’s inability to pay or which the Administrative Agent otherwise determine determines in its Permitted Discretion is unacceptable for any reason whatsoever (in which event event, prior to such exclusion, the Administrative Agent shall provide written notice and be available to discuss in accordance with the procedures set forth in the definition of “Permitted Discretion”).
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Samples: Revolving Syndicated Facility Agreement (Tronox LTD)
