Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period (a) commencing on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 2 contracts
Samples: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCredit Judgment: the period Agent’s judgment based upon its consideration of any factor that: (a) commencing on could reasonably be expected to adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could reasonably be expected to result in a Borrower as payee Default or remittance partyEvent of Default. Credit Card Formula Amount: 85% In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 2 contracts
Samples: Loan and Security Agreement (Hypercom Corp), Loan and Security Agreement (Hypercom Corp)
Contingent Obligation. As to any Person, any reimbursement obligation (including obligations to reimburse the banks under the Senior Credit Agreement for draws on letters of credit) of such Person in respect of drafts that may be drawn under letters of credit, any reimbursement obligations of such Person in respect of surety bonds (including reimbursement obligations in respect of Construction Bonds), and any obligation of a such Person arising from a guaranty, indemnity guaranteeing or other assurance of payment or performance of in effect guaranteeing any Indebtedness, leaseleases, dividend dividends or other obligation obligations primarily to pay money (“"primary obligations”") of another obligor any other Person (“the "primary obligor”") in any manner, whether directly or indirectly, including without limitation any obligation of such Person under any Person, whether or not contingent, (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (iib) to advance or supply funds (i) for the purchase or payment of any such primary obligation, or (iiiii) to maintain working capital or assure working capital, equity capital, capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (ivc) to purchase Property property, securities or services primarily for the purpose of assuring the obligee under any such primary obligation of the ability of the primary obligor to perform a make payment of such primary obligation, or (vd) otherwise to assure or hold harmless the holder of any obligee under such primary obligation against loss in respect thereof; provided, however, that the term "Contingent Obligation" shall not include (A) endorsements of instruments for deposit or collection in the ordinary course of business, (B) Mortgage Loan Repurchase Obligations, or (C) obligations under lot purchase contracts entered into in the ordinary course of business. The amount CONTRIBUTION AGREEMENT. That certain Contribution Agreement dated of any Contingent Obligation shall be deemed even date herewith, but not intended to be effective until the stated or determinable amount of Extension Effective Date, among the primary obligation (or, if lessBorrower, the maximum amount for Guarantors and each additional Guarantor which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect hereafter become a party thereto. Covenant Trigger Period: the period (a) commencing on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity indemnity, or other assurance of payment or performance of any Indebtedness, lease, dividend dividend, or other obligation (as used in this definition, “primary obligations”) of another obligor (as used in this definition, “primary obligor”) in any manner, whether directly or indirectly, manner including any obligation of such Person under any (a) guaranty, endorsement, co-making making, or sale with recourse of an obligation of a primary obligor; , (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; , and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth worth, or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: Continuing Directors – as of any date of determination, any member of the period board of directors of Amkor who (a) commencing was a member of such board of directors on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and Closing Date or (b) continuing until was nominated for election or elected to such board of directors with the first date thereafter on which Availability has been at least the greater approval of (i) $17,500,000 and (ii) 10% a majority of the Commitments Continuing Directors who were members of such board at all times for 45 consecutive daysthe time of such nomination or election. Credit Card Account: an Account arising in Convertible Senior Subordinated Notes—Amkor’s 2.50% Convertible Senior Subordinated Notes due 2011, issued pursuant to the Ordinary Course of Business in respect of a credit card receivable that Convertible Senior Subordinated Notes (a2011) has been earned by performanceIndenture, and Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the Convertible Senior Subordinated Notes (b2014) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqIndenture.).
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Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligationsobligation”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and or (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: ; provided that the period (a) commencing on any date term “Contingent Obligation” shall not include endorsements for collection or deposit, in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising either case, in the Ordinary Course of Business Business, or customary and reasonable indemnity obligations in connection with any disposition of assets permitted under this Agreement (other than any such obligations with respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.Borrowed Money).
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period (a) commencing on Continuing Directors — as of any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% determination, those members of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater Board of (i) $17,500,000 and (ii) 10% Directors of the Commitments Parent, each of whom: (1) was a member of such Board of Directors on the Closing Date; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at all times the time of such nomination or election. Copyright Security Agreements — each memorandum of grant of security interest in copyrights or other copyright security agreement pursuant to which an Obligor grants to Agent, for 45 consecutive daysthe benefit of Secured Parties, a Lien on such Obligor’s interests in copyrights, as security for the Obligations. Credit Card Account: an Account arising Notification — as defined in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance partySection 6.1(p). Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt — as applied to any Person, without duplication, whether or not included as indebtedness or liabilities in accordance with GAAP (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (c) net obligations of such Person under any Hedging Agreement; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) capital leases and synthetic lease obligations; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any equity interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. Default — an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate — for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto. Deposit Account — as defined in the UCC.
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guarantyguaranty (excluding guarantees of performance), indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include (i) any product warranties extended in the Ordinary Course of Business, (ii) indemnities made to officers and directors of any such Person whether pursuant to the governing organizational documents of such Person or otherwise, and (iii) any environmental indemnities identified in the schedules to the Environmental Agreements. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect theretothereto (assuming such Person is required to perform thereunder) as determined by such Person in good faith. Covenant Trigger Period: the period Credit Judgment - Administrative Agent’s reasonable judgment exercised in a manner consistent with its customary practices or otherwise in good faith, based upon its consideration of any factor that it reasonably believes (a) commencing on could adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of any Agent’s Liens, or the amount that Agents and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising provides evidence that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could result in a Borrower Default or Event of Default. In exercising such judgment, Administrative Agent may consider factors already included in the definitions of Eligible Accounts or Eligible Inventory, as payee or remittance party. Credit Card Formula Amount: 85% well as the financial and business climate of Borrowers’ industry, changes in collection history and dilution of Accounts, changes in any material respect in the mix, demand for and pricing of Inventory, changes in any material respect concentration risks, and any factors that could materially increase the credit risk of lending to Borrowers on the security of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqCollateral.).
Appears in 1 contract
Samples: Loan Agreement (Superior Essex Inc)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation Information in this exhibit marked [CONFIDENTIAL TREATMENT REQUESTED] has been omitted and will be filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. Confidential treatment has been requested with respect to the omitted portions. (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period (a) commencing on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Multi Fineline Electronix Inc)
Contingent Obligation. any obligation of a Person arising from a guarantyguarantee, surety, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guarantyguarantee, surety, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period (a) commencing on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.) (or any successor statute)., as amended from time to time, and includes all regulations thereunder. Debt — with respect to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including, without limitation, Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default — an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate — for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto. Deposit Account — includes any bank account (with deposit functions) maintained or held with any financial institution. Distribution — any declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); any distribution, advance or repayment of Debt to a holder of Equity Interests; or any purchase, redemption, or other acquisition or retirement for value of any Equity Interest. Dollars or Canadian Dollars or “$“ — the lawful currency of Canada. Dominion Account — a special account established by each Obligor at Bank, over which Agent has exclusive access and control for withdrawal purposes. EBITDA — determined on a consolidated basis for Borrower and Subsidiaries, net income, calculated before interest expense, provision for income taxes, depreciation and amortization expense, gains or losses arising from the sale of capital assets, gains arising from the write-up of assets, and any extraordinary gains (in each case, to the extent included in determining net income). Eligible Account — an Account owing to an Obligor that arises in the Ordinary Course of Business from the sale of goods, or rendition of services, is payable in Dollars or U.S. Dollars and is deemed by Agent, in its discretion, to be an Eligible Account. Without limiting the foregoing, no Account shall be an Eligible Account if:
Appears in 1 contract
Samples: Loan and Security Agreement (McJunkin Red Man Holding Corp)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend or other obligation Debt (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guarantyany guaranty (whether secured or unsecured, endorsement, co-making and including the provision of security for the payment or sale with recourse performance of an obligation of a the primary obligor; obligations) or (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, or (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCredit Judgment: the period judgment of either or both of the Collateral Agents exercised in good faith and in accordance with their regular business practices and policies (as in effect from time to time) applicable to asset based loans and taking into account market conditions, based upon their consideration of any factor that they believe (a) commencing on could adversely affect the value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising could cause or could reasonably be expected to result in the Ordinary Course of Business any Borrowing Base Certificate, collateral report or related financial information delivered by any Obligor being incomplete, inaccurate or misleading in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could reasonably be expected to result in a Borrower as payee Default or remittance partyEvent of Default. Credit Card Formula Amount: 85% In exercising such judgment, each Collateral Agent may consider any factor that it believes increases or could reasonably be expected to increase the credit risk of lending to Borrowers on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt: as applied to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services, (e) all Debt of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such Person, whether or not the Debt secured thereby has been assumed, (f) all Contingent Obligations of such Person of Debt of others, (g) all obligations under any Capital Leases of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party or guarantor in respect of letters of credit or in respect of letters of guaranty issued by a bank or any other financial institution, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances or any Hedging Agreement, (j) all obligations under any liquidated earn-out but only after such obligation is required to be included on the balance sheet of such Person in accordance with GAAP and only if not paid when due and (k) all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Equity Interests; provided that, notwithstanding any clause of this definition above, “Debt” shall not include trade payables and expenses owing in the ordinary course of business and amounts owing under commercial and merchant card service programs to the extent such amounts are directly or indirectly for the payment of trade payables incurred in the ordinary course of business. The Debt of any Person shall include the Debt of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt provide that such Person is not liable therefor. Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation that is not paid when due (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto. In the case of any Obligation that does not otherwise bear interest at a specified rate, the Default Rate shall mean the Default Rate applicable to Base Rate Loans.
Appears in 1 contract
Samples: Loan Agreement (Solo Cup CO)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity indemnity, or other assurance of payment or performance of any Indebtedness, lease, dividend dividend, or other obligation (as used in this definition, “primary obligations”) of another obligor (as used in this definition, “primary obligor”) in any manner, whether directly or indirectly, manner including any obligation of such Person under any (a) guaranty, endorsement, co-making making, or sale with recourse of an obligation of a primary obligor; , (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; , and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth worth, or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: Continuing Directors — as of any date of determination, any member of the period board of directors of Amkor who (a) commencing was a member of such board of directors on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and Closing Date or (b) continuing until was nominated for election or elected to such board of directors with the first date thereafter on which Availability has been at least the greater approval of (i) $17,500,000 and (ii) 10% a majority of the Commitments Continuing Directors who were members of such board at all times for 45 consecutive daysthe time of such nomination or election. Credit Card Account: an Account arising in Convertible Senior Subordinated Notes — Amkor’s 2.50% Convertible Senior Subordinated Notes due 2011, issued pursuant to the Ordinary Course of Business in respect of a credit card receivable that Convertible Senior Subordinated Notes Indenture issued pursuant to the Convertible Senior Subordinated Notes (a2011) has been earned by performanceIndenture, and Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the Convertible Senior Subordinated Notes (b2014) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqIndenture.).
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCredit Judgment: the period Lender’s judgment exercised reasonably and in good faith, based upon its consideration of any factor that it believes (a) commencing on could reasonably be expected to adversely affect the quantity, quality, mix or value of Collateral, the enforceability or priority of Lender’s Liens, or the amount that Lender could reasonably be expected to receive in liquidation of any date in which Availability is less than the greater Collateral (including any such Collateral consisting of (i) $17,500,000 and (ii) 10% Inventory subject to a License that restricts Lender’s right to dispose of the Commitments at such time and Inventory, unless Lender has received an appropriate Lien Waiver); (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising demonstrates that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, Lender may consider any factors related to the Borrower as payee or remittance party. Credit Card Formula Amount: 85% and the business of the Value Borrower that could reasonably be expected to increase the credit risk of Eligible Credit Card Accounts. CWA: lending to Borrower on the Clean Water Act (33 U.S.C. §§ 1251 et seqsecurity of the Collateral.).
Appears in 1 contract
Samples: Loan Agreement (Ashworth Inc)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCopyrights: as applied to any Person, all of the period following now owned or hereafter acquired by such Person, (a) commencing on all copyright rights in any date in which Availability is less than work subject to the greater of (i) $17,500,000 and (ii) 10% copyright laws of the Commitments at such time United States, any state thereof or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, whether as author, assignee, transferee or otherwise, and (b) continuing until all registrations and applications for registration of any such copyright in the first date thereafter on United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office or in any similar offices in any other country. Debt: with respect to any Person, any liability, whether or not contingent, (a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or similar instruments; (b) representing the balance deferred and unpaid of the purchase price of any property or services (other than an account payable to a trade creditor (whether or not an Affiliate) incurred in the ordinary course of business of such Person and payable in accordance with customary trade practices); (c) all obligations as lessee under leases which Availability has been at least the greater have been, or should be, in accordance with GAAP recorded as Capital Leases; (d) representing Contingent Obligations; (e) all obligations with respect to redeemable stock and redemption or repurchase obligations under any Equity Interest or other equity securities issued by such Person; (f) all reimbursement obligations and other liabilities of such Person with respect to surety bonds (whether bid, performance or otherwise), letters of credit, banker’s acceptances, drafts or similar documents or instruments issued for such Person’s account; (g) all obligations, liabilities and indebtedness of such Person (marked to market) arising under swap agreements, cap agreements and collar agreements and other agreements or arrangements designed to protect such person against fluctuations in interest rates or currency or commodity values; (h) all obligations owed by such Person under license agreements relating to Intellectual Property with respect to non-refundable, advance or minimum guarantee royalty payments; (i) $17,500,000 indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer to the extent such Person is liable therefor as a result of such Person’s ownership interest in such entity, except to the extent that the terms of such indebtedness expressly provide that such Person is not liable therefor or such Person has no liability therefor as a matter of Applicable Law, (j) the principal and interest portions of all rental obligations of such Person under any synthetic lease or similar off-balance sheet financing where such transaction is considered to be borrowed money for tax purposes but is classified as an operating lease in accordance with GAAP, and (iik) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course case of Business in respect of a credit card receivable that (a) has been earned by performanceBorrower, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqObligations.).
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guarantyguarantee, surety, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guarantyguarantee, surety, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period Credit Judgment — Agent’s reasonable credit judgment, based upon its consideration of any factor that it believes (a) commencing on will or could be expected to adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders would likely receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could result in a Default or Event of Default. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrower as payee or remittance party. Credit Card Formula Amount: 85% on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.) (or any successor statute), as amended from time to time, and includes all regulations thereunder. Debt — with respect to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including, without limitation, Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default — an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate — for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (South Texas Supply Company, Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Continuing Director: (a) any member of the board of directors of Company who was a director (or comparable manager) of Company on the Amendment No. 3 Effective Date, and (b) any individual who becomes a member of the board of directors after the Amendment No. 3 Effective Date if such individual was approved, appointed or nominated for election to the board of directors of Company by a majority of the Continuing Directors, but excluding any such individual originally proposed for election in opposition to the Continuing Directors in an actual or publically threatened election contest relating to the election of the directors (or comparable managers) of Company and whose assumption of office resulted from such contest or the settlement thereof. Covenant Trigger Period: the period (a) commencing on any date in which Specified Availability is less than the greater of (i) $17,500,000 12,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Specified Availability has been at least the greater of (i) $17,500,000 12,500,000 and (ii) 10% of the Commitments at all times for 45 30 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2.00% plus the interest rate otherwise applicable thereto.
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCredit Judgment: the period Agent’s judgment exercised in good faith, based upon its consideration of any factor that it believes (a) commencing on could adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Borrower is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving a Borrower as payee Borrower; or remittance party(d) creates or could result in a Default or Event of Default. Credit Card Formula Amount: 85% In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; (d) obligations of such Person (whether contingent or otherwise) in respect of surety bonds or similar agreements or arrangements; (e) obligations in respect of cash pooling or similar arrangements and (f) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto. Defaulting Lender: any Lender that, as determined by Agent, (a) has failed to perform any funding obligations hereunder, and such failure is not cured within three Business Days; (b) has notified Agent or any Borrower that such Lender does not intend to comply with its funding obligations hereunder or has made a public statement to the effect that it does not intend to comply with its funding obligations hereunder or under any other credit facility in which such Lender commits to extend credit and Agent has determined that such Lender is a “Defaulting Lender” hereunder based on such Lender’s public statement with respect to such other credit facility; (c) has failed, within three Business Days following request by Agent, to confirm in a manner satisfactory to Agent that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding or taken any action in furtherance thereof; provided, however, that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an equity interest in such Lender or parent company.
Appears in 1 contract
Samples: Loan and Security Agreement (Cooper Tire & Rubber Co)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Controlled In-Transit Inventory Eligibility Event:Trigger Period: the period (a) commencing on any date in which Availability is less than day following the greater occurrence of (i) $17,500,000 and (ii) 10% any of the Commitments follow ing: (a(i ) an Event of Default or (bii) either (x) the failure of the Borrower to maintain Availability of at such least $1,500,000 at any time5,000,000 at any time or (y) the failure of the Borrower to maintain Availability of at least $8,000,000 for 5 consecutive days and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 no Event of Default exists and (ii) 10% during each of the Commitments at all times for 45 preceding 30 consecutive days, Availability has exceeded $8,000,000. [AG&M] Exhibit A to Second Amendment to Credit Card AccountAgreement Copyrights: an Account all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, including those listed on Schedule 8.1.11, all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the Ordinary Course United States Copyright Office, and the right to obtain all renewals of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accountsforegoing. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venture, unless expressly made non-recourse to such Person and only to the extent of the direct payment liability of such Person. Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% per annum plus the interest rate otherwise applicable thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Select Interior Concepts, Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Xxxxxxxx – Loan, Security and Guaranty Agreement #53354946 EXECUTION VERSION Covenant Trigger Period: the period (a) commencing on any date in which day that (i) Availability is less than the greater of (ix) $17,500,000 9,300,0005,000,000 and (iiy) 1015% of the Commitments at such time Borrowing Base and (b) continuing until until, during each of the first date thereafter on which preceding 30 consecutive days, Availability has been at least more than the greater of (ix) $17,500,000 9,300,0005,000,000 and (iiy) 1015% of the Commitments at all times for 45 consecutive daysBorrowing Base. Credit Card Account: an Account arising The termination of a Covenant Trigger Period as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Trigger Period in the Ordinary Course event that the conditions set forth in this definition again arise. Covered Entity: any of Business in respect of a credit card receivable that the following: (a) has been earned by performancea “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) represents the bona fide amounts due to a Borrower from any major processor “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower “covered FSI” as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accountsthat term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Quintana Energy Services Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the lesser of (x) the stated or determinable amount of the primary obligation obligation, (or, if less, y) the maximum amount for which such Person may be liable under the instrument evidencing the Contingent ObligationObligation and (z) orif recourse is limited to a specific asset, the fair market value of such asset; provided, that if not stated or none of the foregoing are determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodControl: the period (a) commencing on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% possession, directly or indirectly, of the Commitments at such time and (b) continuing until power to direct or cause direction of a Person’s management or policies, whether through the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive daysability to exercise voting power, by contract or otherwise. Credit Card AccountFacilities: an Account arising with respect to any Obligor, one or more debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, notes, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in the Ordinary Course of Business each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due whole or in part from time to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqtime.).
Appears in 1 contract
Samples: Loan and Security Agreement (Amkor Technology, Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity indemnity, or other assurance of payment or performance of any Indebtedness, lease, dividend dividend, or other obligation (as used in this definition, “primary obligations”) of another obligor (as used in this definition, “primary obligor”) in any manner, whether directly or indirectly, manner including any obligation of such Person under any (a) guaranty, endorsement, co-making making, or sale with recourse of an obligation of a primary obligor; , (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; , and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth worth, or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: Continuing Directors – as of any date of determination, any member of the period board of directors of Amkor who (a) commencing was a member of such board of directors on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and Closing Date or (b) continuing until was nominated for election or elected to such board of directors with the first date thereafter on which Availability has been at least the greater approval of (i) $17,500,000 and (ii) 10% a majority of the Commitments Continuing Directors who were members of such board at all times for 45 consecutive daysthe time of such nomination or election. Credit Card Account: an Account arising in Convertible Senior Subordinated Notes - Amkor’s 2.50% Convertible Senior Subordinated Notes due 2011, issued pursuant to the Ordinary Course of Business in respect of a credit card receivable that Convertible Senior Subordinated Notes (a2011) has been earned by performanceIndenture, and Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the Convertible Senior Subordinated Notes (b2014) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqIndenture.).
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligationsobligation”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and or (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: ; provided that the period (a) commencing on any date term “Contingent Obligation” shall not include endorsements for collection or deposit, in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising either case, in the Ordinary Course of Business Business, or customary and reasonable indemnity obligations in connection with any disposition of assets permitted under this Agreement (other than any such obligations with respect to Borrowed Money). 133315237_8 Control: possession, directly or indirectly, of the power to direct or cause direction of a Person’s management or policies, whether through the ability to exercise voting power, by contract or otherwise. Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, excluding trade payables incurred and being paid in the Ordinary Course of Business, but including Capital Leases; (b) all Contingent Obligations in respect of a credit card receivable that obligations of the type described in clauses (a) has been earned by performance), (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only and (d); (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower as payee Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or remittance partyjoint venturer (unless such joint venture is itself a corporation or limited liability company), unless such Debt is expressly made non-recourse to such Person. Credit Card Formula AmountDefault: 85an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2.00% of plus the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqinterest rate otherwise applicable thereto.).
Appears in 1 contract
Samples: Guaranty and Security Agreement (Inari Medical, Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“"primary obligations”") of another obligor (“"primary obligor”") in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period Credit Judgment - Agent's judgment exercised in good faith, based upon its consideration of any factor that it believes (a) commencing on could adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent's Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could result in a Borrower as payee Default or remittance partyEvent of Default. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateral. Credit Card Formula Amount: 85% of Party - the Value of Eligible Agent, a Lender or the Issuing Bank; and Credit Card AccountsParties means Agent, Lenders and Issuing Banks. CWA: CWA - the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt - as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default - an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate - for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto. Deposit Account - as defined in the UCC.
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligationsobligation”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and or (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Control: possession, directly or indirectly, of the power to direct or cause direction of a Person’s management or policies, whether through the ability to exercise voting power, by contract or otherwise. Covenant Trigger Period: the period (a) commencing on any date in which day that (i) an Event of Default occurs, (ii) if no Loans or Letters of Credit (other than Letters of Credit that have been Cash Collateralized) are outstanding, Liquidity is less than the Applicable Trigger, or (iii) if any Loan or Letter of Credit (other than Letters of Credit that have been Cash Collateralized) is outstanding, Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time Applicable Trigger; and (b) continuing until until, during each of the first date thereafter on which preceding 30 consecutive days, (i) no Event of Default has existed, (ii) in the case of a Covenant Trigger Period arising as a result of clause (a)(ii) above, Liquidity has been more than the Applicable Trigger at all times, and (iii) in the case of a Covenant Trigger Period arising as a result of clause (a)(iii) above, Availability has been at least more than the greater of (i) $17,500,000 and (ii) 10% of the Commitments Applicable Trigger at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seqeach case during such 30 day period.).
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Atlas Energy Solutions Inc.)
Contingent Obligation. any obligation of a Person arising from a guarantyguaranty (excluding guarantees of performance), indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include (i) any product warranties extended in the Ordinary Course of Business, (ii) indemnities made to officers and directors of any such Person whether pursuant to the governing organizational documents of such Person or otherwise, and (iii) any environmental indemnities identified on Schedule 9.1.15. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder) as determined by such Person in good faith. Contribution Agreement - that certain Contribution and Formation Agreement, dated July 27, 2005, between Essex, Nexans and the other parties named therein, together with any exhibits thereto. Covenant Trigger Period: the period Credit Judgment - Agent’s judgment exercised in a manner consistent with its customary practices or otherwise in good faith, based upon its consideration of any factor that it reasonably believes (a) commencing on could adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could result in a Borrower Default or Event of Default. In exercising such judgment, Agent may consider factors already included in the definitions of Eligible Accounts or Eligible Inventory, as payee or remittance party. Credit Card Formula Amount: 85% well as the financial and business climate of Borrowers’ industry, changes in collection history and dilution of Accounts, changes in demand for and pricing of Inventory, changes in concentration risks, and any factors that could materially increase the credit risk of lending to Borrowers on the security of the Value Collateral. Customer Contract Inventory – Inventory of Eligible Credit Card Accountsanother Person at any time in the possession of any Borrower for processing, repairing or otherwise. CWA: CWA - the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt - as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Debtor – each of Superior TeleCom, Inc., Superior Telecommunications Inc., Superior Telecommunications Realty Company, Essex International Inc., Essex, Superior Essex Realty Company, Active Industries, Inc., Diamond Wire & Cable Co., Essex Funding, Inc., Essex Services, Inc., Essex Canada, Inc., Essex Technology, Inc., Essex Wire Corporation, Essex Group Mexico Inc. and Essex Mexico Holdings, L.L.C., and, collectively “Debtors”. Default - an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate - for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance non-performance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCredit Judgment: the period Agent’s judgment exercised in good faith, based upon its consideration of any factor that it believes (a) commencing on could adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could result in a Borrower as payee Default or remittance partyEvent of Default. Credit Card Formula Amount: 85% In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables and intercompany payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations. The Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or similar legal entity) in which such Person is a general partner or a joint venturer, unless such Debt is expressly made non-recourse to such Person. The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Swap Termination Value as of such date.
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodControl Group: the period (a) commencing on at any date in which Availability is less than the greater time, any combination of (i) $17,500,000 and the Sponsor (not including, however, any portfolio companies of the Sponsor), (ii) 10% Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx or any entity controlled by them collectively, and (iii) the directors, executive officers and other management personnel of the Commitments at such time Companies, or any entity controlled by any of them, as the case may be, on the date hereof. Credit Judgment: Agent’s judgment exercised in good faith, based upon its consideration of any factor that it reasonably believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in liquidation of any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only materially increases the likelihood of any Insolvency Proceeding involving an Obligor other than an Immaterial Obligor; or (d) creates or could result in a Borrower as payee Default or remittance partyEvent of Default. Credit Card Formula Amount: 85% In exercising such judgment, Agent may consider any factors that it reasonably believes could increase the credit risk of lending to Borrowers on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 1 contract
Samples: Loan and Security Agreement (Installed Building Products, Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodDebt: the period as applied to any Person, without duplication, (a) commencing all items that would be included as liabilities on any date a balance sheet in which Availability is less than the greater of (i) $17,500,000 accordance with GAAP, including Capital Leases, but excluding trade payables incurred and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising being paid in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, Business; (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and all Contingent Obligations; (c) indicates all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venture, unless expressly made non-recourse to such Person and only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% to the extent of the Value direct payment liability of Eligible Credit Card Accountssuch Person. CWADefault: an event or condition that, with the Clean Water Act lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (33 U.S.C. §§ 1251 et seqincluding, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.).
Appears in 1 contract
Samples: Loan and Security Agreement (Select Interior Concepts, Inc.)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, Debt or dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger Period: the period (a) commencing on any date in which Availability is less than the greater of (i) $17,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; (d) in the case of a U.S. Borrower, the Obligations; and (e) in the case of the Canadian Borrower, the Canadian Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (United Natural Foods Inc)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Continuing Letters of Credit: letters of credit issued by Comerica Bank copies of which are attached as Exhibit F. Covenant Trigger Period: the period (a) commencing on any date in which the day that Availability is less than the greater of (iX) $17,500,000 20,000,000 and (iiY) 1015% of the aggregate amount of Revolver Commitments at on such time day; and (b) continuing until the first date thereafter on which day Availability has been at least greater than the greater of (iX) $17,500,000 20,000,000 and (iiY) 1015% of the Commitments at all times aggregate amount of Revolver Commitments, in the case of clauses (b)(X)and (b)(Y), for 45 a period of 30 consecutive days. Credit Card Account: an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 1 contract
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodCredit Judgment: the period Agent’s reasonable judgment based upon its consideration of any factor that: (a) commencing on could be expected to adversely affect the quantity, quality, mix or value of Collateral (including any date Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in which Availability is less than the greater liquidation of (i) $17,500,000 and (ii) 10% of the Commitments at such time and any Collateral; (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and material respect; (c) indicates only Agent believes materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could be expected to result in a Default or Event of Default. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrower as payee or remittance party. Credit Card Formula Amount: 85% on the security of the Value of Eligible Credit Card AccountsCollateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Trident Microsystems Inc)
Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any IndebtednessDebt, lease, dividend or other obligation (“primary obligationsobligation”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and or (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Covenant Trigger PeriodControl: possession, directly or indirectly, of the period power to direct or cause direction of a Person’s management or policies, whether through the ability to exercise voting power, by contract or otherwise. Debt: as applied to any Person, without duplication, (a) commencing all items that would be included as liabilities on any date a balance sheet in which Availability is less than the greater of (i) $17,500,000 accordance with GAAP, excluding trade payables incurred and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Availability has been at least the greater of (i) $17,500,000 and (ii) 10% of the Commitments at all times for 45 consecutive days. Credit Card Account: an Account arising being paid in the Ordinary Course of Business Business, but including Capital Leases; (b) all Contingent Obligations; (c) all reimbursement obligations in respect connection with letters of credit issued for the account of such Person; and (d) in the case of a credit card receivable Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2.00% plus the interest rate otherwise applicable thereto. Defaulting Lender: any Lender that (a) has been earned by performancefailed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days; (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards has notified Agent or any Borrower that such Lender does not intend to comply with its funding obligations hereunder or under any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party. Credit Card Formula Amount: 85% of the Value of Eligible Credit Card Accounts. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).facility, -6-
Appears in 1 contract
