Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Debt, 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. Credit Judgment: Agent’s judgment based upon its consideration of any factor that: (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event 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. 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. any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Debt, 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. Credit Judgment: Agent’s the 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 its their consideration of any factor that: that they believe (a) could reasonably be expected to 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) could cause or could reasonably suggests that be expected to result in any Borrowing Base Certificate, collateral report or related financial information delivered by any Obligor is being incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event of Default. In exercising such judgment, each Collateral Agent may consider any factors factor that it believes increases or could reasonably be expected to increase the credit risk of lending to Borrowers on the security of the Collateral. 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 DebtIndebtedness, 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. Credit Judgment: Agent’s judgment based upon its consideration Continuing Directors – as of any factor that: date of determination, any member of the board of directors of Amkor who (a) could reasonably be expected to adversely affect was a member of such board of directors on the quantity, quality, mix Closing Date 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) reasonably suggests that any collateral report was nominated for election or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases elected to such board of directors with the likelihood approval 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, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security majority of the CollateralContinuing Directors who were members of such board at the time of such nomination or election. CWA: Convertible Senior Subordinated Notes—Amkor’s 2.50% Convertible Senior Subordinated Notes due 2011, issued pursuant to the Clean Water Act Convertible Senior Subordinated Notes (33 U.S.C. §§ 1251 et seq2011) Indenture, and Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the Convertible Senior Subordinated Notes (2014) Indenture.).
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 Debt, 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. Credit JudgmentControlled In-Transit Inventory Eligibility Event:Trigger Period: Agent’s judgment based upon its consideration of any factor that: the period (a) could reasonably be expected to adversely affect commencing on any day following 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 occurrence of any Collateral; of the follow ing: (a(i ) an Event of Default or (bii) either (x) the failure of the Borrower to maintain Availability of at 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) reasonably suggests that continuing until (i) no Event of Default exists and (ii) during each of the preceding 30 consecutive days, Availability has exceeded $8,000,000. Copyrights: all copyrights arising under the laws of the United States, any collateral report other country or financial information delivered by any Obligor is incompletepolitical subdivision thereof, inaccurate whether registered or misleading unregistered and whether published or unpublished, including those listed on Schedule 8.1.11, all registrations and recordings thereof, and all applications in any material respect; (c) Agent reasonably believes materially increases connection therewith, including all registrations, recordings and applications in the likelihood United States Copyright Office, and the right to obtain all renewals 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, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateralforegoing. 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 Debt, 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. Credit Judgment: Agent’s reasonable judgment based upon its consideration of any factor that: (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event of Default. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers Borrower on the security of the Collateral. 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 guarantyguaranty (excluding guarantees of performance), indemnity or other assurance of payment or performance of any Debt, 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. Credit Judgment: 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: that it reasonably believes (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 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 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 Collateral. CWA: Customer Contract Inventory – Inventory of another Person at any time in the possession of any Borrower for processing, repairing or otherwise. 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 DebtIndebtedness, 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. Credit Judgment: Agent’s judgment based upon its consideration of any factor thatContinuing Director: (a) could reasonably be expected to adversely affect any member of the quantityboard of directors of Company who was a director (or comparable manager) of Company on the Amendment No. 3 Effective Date, 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) reasonably suggests 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) $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) $12,500,000 and (ii) 10% of the Commitments at all times for 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 collateral report major processor or financial information delivered by issuer of MasterCard, Visa, American Express or Discover credit cards or any Obligor is incomplete, inaccurate other nationally or misleading in any material respect; internationally recognized credit card provider and (c) Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an Obligor; indicates only a Borrower as payee or (d) creates or could reasonably be expected to result in a Default or Event of Defaultremittance party. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security Credit Card Formula Amount: 85% of the CollateralValue 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
Samples: Loan Agreement and Forbearance 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 Debt, 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. 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. Credit JudgmentFacilities: Agent’s judgment based upon its consideration of with respect to any factor that: (a) could reasonably be expected to adversely affect the quantityObligor, qualityone or more debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, mix or value of Collateral term loans, notes, receivables financing (including any Applicable Law that may inhibit collection through the sale of an Account)receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, the enforceability in each case, as amended, restated, modified, renewed, refunded, replaced or priority of Agent’s Liens, refinanced in whole or the amount that Agent and Lenders could receive in liquidation of any Collateral; (b) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could reasonably be expected part from time 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 Borrowers on the security of the Collateral. 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 or other assurance of payment or performance of any Debt, 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. Credit Judgment: Agent’s judgment exercised in good faith, based upon its consideration of any factor that: that it believes (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor Borrower is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an Obligora Borrower; or (d) creates or could reasonably 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 Borrowers on the security of the Collateral. 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 Debt, 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. Credit Judgment: AgentLender’s judgment exercised reasonably and in good faith, based upon its consideration of any factor that: that it believes (a) could reasonably be expected to adversely affect the quantity, quality, mix or value of Collateral (including any Applicable Law that may inhibit collection of an Account)Collateral, the enforceability or priority of AgentLender’s Liens, or the amount that Agent and Lenders Lender could reasonably be expected to receive in liquidation of any CollateralCollateral (including any such Collateral consisting of Inventory subject to a License that restricts Lender’s right to dispose of such Inventory, unless Lender has received an appropriate Lien Waiver); (b) reasonably suggests demonstrates that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event of Default. In exercising such judgment, Agent Lender may consider any factors related to the Borrower and the business of the Borrower that could reasonably be expected to increase the credit risk of lending to Borrowers Borrower on the security of the Collateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
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 Debt, 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. Credit JudgmentCopyrights: Agent’s judgment based upon its consideration as applied to any Person, all of any factor that: the following now owned or hereafter acquired by such Person, (a) could reasonably be expected all copyright rights in any work subject to adversely affect the quantitycopyright laws of the United States, qualityany state thereof or any other country or any political subdivision thereof, mix whether registered or value of Collateral (including any Applicable Law that may inhibit collection of an Account)unregistered and whether published or unpublished, the enforceability whether as author, assignee, transferee or priority of Agent’s Liensotherwise, or the amount that Agent and Lenders could receive in liquidation of any Collateral; (b) reasonably suggests that all registrations and applications for registration of any collateral report such copyright in the United States or financial information delivered by any Obligor is incompleteother country, inaccurate including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office or misleading in any material respect; (c) Agent reasonably believes materially increases the likelihood of similar offices in 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, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateralother country. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.). 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 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) 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 (k) in the case of Borrower, the Obligations.
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 Debt, 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. Credit JudgmentControl: Agentpossession, directly or indirectly, of the power to direct or cause direction of a Person’s judgment based upon its consideration of any factor thatmanagement or policies, whether through the ability to exercise voting power, by contract or otherwise. Covenant Trigger Period: the period (a) could reasonably be expected to adversely affect commencing on any 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 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 LiensTrigger, 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 amount that Agent Applicable Trigger; and Lenders could receive in liquidation of any Collateral; (b) reasonably suggests that any collateral report or financial information delivered by any Obligor is incompletecontinuing until, inaccurate or misleading in any material respect; during each of the preceding 30 consecutive days, (ci) 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 Default or no Event of Default. In exercising 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 more than the Applicable Trigger at all times in each case during such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq30 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 guaranty, indemnity or other assurance of payment or performance of any Debt, 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. Credit Judgment: Agent’s judgment based upon its consideration Continuing Directors — as of any factor thatdate of determination, those members of the Board of Directors of the Parent, each of whom: (a1) could reasonably be expected to adversely affect was a member of such Board of Directors on 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an ObligorClosing Date; or (d2) creates was nominated for election or could reasonably be expected elected to result in such Board of Directors with the approval of a Default or Event of Default. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security majority of the CollateralContinuing Directors who were members of such Board of Directors at the time of such nomination or election. CWA: 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 the benefit of Secured Parties, a Lien on such Obligor’s interests in copyrights, as security for the Obligations. Credit Card Notification — as defined in Section 6.1(p). 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 guarantyguarantee, surety, indemnity or other assurance of payment or performance of any Debt, 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. Credit Judgment: Judgment — Agent’s judgment reasonable credit judgment, based upon its consideration of any factor that: that it believes (a) will or could reasonably be expected to 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 would likely receive in liquidation of any Collateral; (b) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event of Default. In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers Borrower on the security of the Collateral. 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. 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 guarantyguaranteeing or in effect guaranteeing any Indebtedness, indemnity leases, dividends or other assurance of payment or performance obligations primarily to pay money ("primary obligations") of any Debt, lease, dividend or other obligation Person (“primary obligations”) of another obligor (“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. Credit Judgment: Agent’s judgment based upon its consideration of any factor that: (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event 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. 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 guarantyguaranty (excluding guarantees of performance), indemnity or other assurance of payment or performance of any Debt, 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. Credit Judgment: 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: that it reasonably believes (a) could reasonably be expected to 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 any Agent’s Liens, or the amount that Agent Agents and Lenders could receive in liquidation of any Collateral; (b) reasonably suggests provides evidence that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 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 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 Collateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
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 Debt, 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. Credit JudgmentCopyrights: Agent’s judgment based upon its consideration as applied to any Person, all of any factor that: the following now owned or hereafter acquired by such Person, (a) could reasonably be expected all copyright rights in any work subject to adversely affect the quantitycopyright laws of the United States, qualityany state thereof or any other country or any political subdivision thereof, mix whether registered or value of Collateral unregistered and whether published or unpublished, whether as author, assignee, transferee or otherwise, and (including any Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent b) all registrations and Lenders could receive in liquidation applications for registration of any Collateralsuch copyright in the 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) reasonably suggests that representing the balance deferred and unpaid of the purchase price of any collateral report property or financial information delivered by any Obligor is incomplete, inaccurate services (other than an account payable to a trade creditor (whether or misleading not an Affiliate) incurred in any material respectthe ordinary course of business of such Person and payable in accordance with customary trade practices); (c) Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an Obligorall obligations as lessee under leases which have been, or should be, in accordance with GAAP recorded as Capital Leases; or (d) creates representing Contingent Obligations; (e) all obligations with respect to redeemable stock and redemption or could reasonably 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) 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 expected to result borrowed money for tax purposes but is classified as an operating lease in a Default or Event accordance with GAAP, and (k) in the case of Default. In exercising such judgmentBorrower, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateral. 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 guaranty, indemnity indemnity, or other assurance of payment or performance of any DebtIndebtedness, 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. Credit Judgment: Agent’s judgment based upon its consideration Continuing Directors – as of any factor that: date of determination, any member of the board of directors of Amkor who (a) could reasonably be expected to adversely affect was a member of such board of directors on the quantity, quality, mix Closing Date 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) reasonably suggests that any collateral report was nominated for election or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases elected to such board of directors with the likelihood approval 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, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security majority of the CollateralContinuing Directors who were members of such board at the time of such nomination or election. CWA: Convertible Senior Subordinated Notes - Amkor’s 2.50% Convertible Senior Subordinated Notes due 2011, issued pursuant to the Clean Water Act Convertible Senior Subordinated Notes (33 U.S.C. §§ 1251 et seq2011) Indenture, and Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the Convertible Senior Subordinated Notes (2014) Indenture.).
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Contingent Obligation. any obligation of a Person arising from a guaranty, indemnity indemnity, or other assurance of payment or performance of any DebtIndebtedness, 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. Credit Judgment: Agent’s judgment based upon its consideration Continuing Directors — as of any factor that: date of determination, any member of the board of directors of Amkor who (a) could reasonably be expected to adversely affect was a member of such board of directors on the quantity, quality, mix Closing Date 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) reasonably suggests that any collateral report was nominated for election or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases elected to such board of directors with the likelihood approval 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, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security majority of the CollateralContinuing Directors who were members of such board at the time of such nomination or election. CWA: Convertible Senior Subordinated Notes — Amkor’s 2.50% Convertible Senior Subordinated Notes due 2011, issued pursuant to the Clean Water Act Convertible Senior Subordinated Notes Indenture issued pursuant to the Convertible Senior Subordinated Notes (33 U.S.C. §§ 1251 et seq2011) Indenture, and Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the Convertible Senior Subordinated Notes (2014) Indenture.).
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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 Debt, 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. Credit Judgment: Agent’s judgment exercised in good faith, based upon its consideration of any factor that: that it believes (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event 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. 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.
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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 Debt, 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. Control Group: at any time, any combination of (i) the Sponsor (not including, however, any portfolio companies of the Sponsor), (ii) 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 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: that it reasonably believes (a) could reasonably be expected to 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) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent reasonably believes materially increases the likelihood of any Insolvency Proceeding involving an Obligor other than an Immaterial Obligor; or (d) creates or could reasonably be expected to result in a Default or Event of Default. 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 Collateral. CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
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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 Debt, 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. Credit Judgment: Judgment - Agent’s 's judgment exercised in good faith, based upon its consideration of any factor that: that it believes (a) could reasonably be expected to 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 's Liens, or the amount that Agent and Lenders could receive in liquidation of any Collateral; (b) reasonably suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) 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 Default or Event 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. CWA: Credit Party - the Agent, a Lender or the Issuing Bank; and Credit Parties means Agent, Lenders and Issuing Banks. 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.
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