Deposit Account Control Agreements. the Deposit Account control agreements to be executed by each institution maintaining a Deposit Account for a Borrower, in favor of Collateral Agent, for the benefit of Lenders, as security for the Obligations. Distribution - any declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or any purchase, redemption, or other acquisition or retirement for value of any Equity Interest; or any payment of management or advisory fees (or other fees of a similar nature) or out-of-pocket expenses in connection therewith by any Borrower to any holder of any Equity Interest of Parent or any Affiliate of such holder. Document - as defined in the UCC. Dollars - lawful money of the United States. Domestic Subsidiary - a Subsidiary (other than an Immaterial Subsidiary) which is created or organized under the laws of the United States of America, any of its states or the District of Columbia. Eligible Assignee - a Person that is (a) a Lender, U.S. based Affiliate of a Lender (other than an Obligor or any Subsidiary of an Obligor) or Approved Fund; (b) any other financial institution approved by Required Lenders and the Borrower Representative (which approval by the Borrower Representative shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten (10) Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Required Lenders in their discretion. Enforcement Action - any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Laws - all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA. Environmental Notice - a notice from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. Environmental Release - a release as defined in CERCLA or under any other Environmental Law. Equipment - as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest - the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. ERISA - the Employee Retirement Income Security Act of 1974. Event of Default - as defined in Section 10. Exchange Act - the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. Exchange Offer - that certain offer by Borrower Representative, completed as of July 23, 2009, pursuant to which Borrower Representative exchanged $117,832,000 in aggregate principal amount of its 7.875% debentures maturing July 15, 2009 and $13,790,000 in aggregate principal amount of its 7.625% debentures maturing October 15, 2017 for $120,590,000 in aggregate principal amount of its 2009 Debentures. Excluded Accounts - as defined in Section 7.5. Excluded Tax - with respect to Collateral Agent, any Lender or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which any Borrower is a resident for tax purposes on the Closing Date; (c) any backup withholding Tax required by the Code to be withheld from amounts payable to a Payee that has failed or is unable to comply with
Appears in 2 contracts
Samples: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Deposit Account Control Agreements. the Deposit Account control agreements to be executed by each institution maintaining a Deposit Account for a Borrower, in favor of Collateral Agent, for the benefit of Lenders, as security for the Obligations. Distribution - Distribution—any declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or any purchase, redemption, or other acquisition or retirement for value of any Equity Interest; or any payment of management or advisory fees (or other fees of a similar nature) or out-of-pocket expenses in connection therewith by any Borrower to any holder of any Equity Interest of Parent or any Affiliate of such holder. Document - Document—as defined in the UCC. Dollars - Dollars—lawful money of the United States. Domestic Subsidiary - Subsidiary—a Subsidiary (other than an Immaterial Subsidiary) which is created or organized under the laws of the United States of America, any of its states or the District of Columbia. Eligible Assignee - Assignee—a Person that is (a) a Lender, U.S. based Affiliate of a Lender (other than an Obligor or any Subsidiary of an Obligor) or Approved Fund; (b) any other financial institution approved by Required Lenders and the Borrower Representative (which approval by the Borrower Representative shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten (10) Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Required Lenders in their discretion. Enforcement Action - Action—any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Laws - Laws—all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA. Environmental Notice - Notice—a notice from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. Environmental Release - Release—a release as defined in CERCLA or under any other Environmental Law. Equipment - Equipment—as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest - Interest—the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. ERISA - ERISA—the Employee Retirement Income Security Act of 1974. Event of Default - Default—as defined in Section 10. Exchange Act - Act—the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. Exchange Offer - Offer—that certain offer by Borrower Representative, completed as of July 23, 2009, pursuant to which Borrower Representative exchanged $117,832,000 in aggregate principal amount of its 7.875% debentures maturing July 15, 2009 and $13,790,000 in aggregate principal amount of its 7.625% debentures maturing October 15, 2017 for $120,590,000 in aggregate principal amount of its 2009 Debentures. Excluded Accounts - Accounts—as defined in Section 7.5. Excluded Tax - Tax—with respect to Collateral Agent, any Lender or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which any Borrower is a resident for tax purposes on the Closing Date; (c) any backup withholding Tax required by the Code to be withheld from amounts payable to a Payee that has failed or is unable to comply with
Appears in 2 contracts
Samples: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Deposit Account Control Agreements. the Deposit Account control agreements to be executed by each institution maintaining a Deposit Account for a Borrower, in favor of Collateral Agent, for the benefit of Lenders, as security for the Obligations. Distribution - any declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or any purchase, redemption, or other acquisition or retirement for value of any Equity Interest; or any payment of management or advisory fees (or other fees of a similar nature) or out-of-pocket expenses in connection therewith by any Borrower to any holder of any Equity Interest of Parent or any Affiliate of such holder. Document - as defined in the UCC. Dollars - lawful money of the United States. Domestic Subsidiary - a Subsidiary (other than an Immaterial Subsidiary) which is created or organized under the laws of the United States of America, any of its states or the District of Columbia. Eligible Assignee - a Person that is (a) a Lender, U.S. based Affiliate of a Lender (other than an Obligor or any Subsidiary of an Obligor) or Approved Fund; (b) any other financial institution approved by Required Lenders and the Borrower Representative (which approval by the Borrower Representative shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten (10) Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Required Lenders in their discretion. Enforcement Action - any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Laws - all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA. Environmental Notice - a notice from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. Environmental Release - a release as defined in CERCLA or under any other Environmental Law. Equipment - as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest - the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. ERISA - the Employee Retirement Income Security Act of 1974. Event of Default - as defined in Section 10. Exchange Act - the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. Exchange Offer - that certain offer by Borrower Representative, completed as of July 23, 2009, pursuant to which Borrower Representative exchanged $117,832,000 in aggregate principal amount of its 7.875% debentures maturing July 15, 2009 and $13,790,000 in aggregate principal amount of its 7.625% debentures maturing October 15, 2017 for $120,590,000 in aggregate principal amount of its 2009 Debentures. Excluded Accounts - as defined in Section 7.5. Excluded Tax - with respect to Collateral Agent, any Lender or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which any Borrower is a resident for tax purposes on the Closing Date; (c) any backup withholding Tax required by the Code to be withheld from amounts payable to a Payee that has failed or is unable to comply withwith Section 5.7; (d) in the case of a Foreign Payee, any United States withholding Tax that is (i) required pursuant to laws in force at the time such Payee becomes a Payee (or designates a new Lending Office) hereunder, or (ii) attributable to such Payee’s failure or inability (other than as a result of a Change in Law) to comply with Section 5.7, except to the extent that such Foreign Payee (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from Borrowers with respect to such withholding Tax; and (e) any Taxes imposed on amounts payable by Borrowers under Sections 1471-1474 of the Code. Existing Agreement - as defined in the recitals hereto. Extraordinary Expenses - all costs, expenses or advances that Collateral Agent or a Lender may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of a Borrower (which shall be reasonable under the circumstances in which they are incurred), including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Collateral Agent, any Lender, any Borrower, any representative of creditors of a Borrower or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Collateral Agent’s Liens with respect to any Collateral), Loan Documents or Obligations, including any lender liability or other Claims; (c) the exercise, protection or enforcement of any rights or remedies of Collateral Agent, any Lender in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; or (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations. Such costs, expenses and advances include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Borrower or independent contractors in liquidating any Collateral, and travel expenses. Fiscal Month - one of the three fiscal periods in a Fiscal Quarter each of which is approximately one month in duration. There are 12 Fiscal Months in each Fiscal Year. Fiscal Quarter - one of the four 13-week, or, if applicable, 14-week quarters in a Fiscal Year, with the first of such quarters beginning on the first day of a Fiscal Year and ending on a Saturday of the thirteenth (or fourteenth, if applicable) week in such quarter. Fiscal Year - the fiscal year of the Parent for financial accounting purposes. Fixed Charge Coverage Ratio - the ratio, determined on a consolidated basis for Parent and its Subsidiaries for the most recent 12 consecutive Fiscal Months, of (a) Consolidated EBITDA minus the sum of (i) Capital Expenditures (except (x) those
Appears in 1 contract
Deposit Account Control Agreements. the Deposit Account control agreements to be executed by each depository institution maintaining of a Deposit Account for a Borrower, Borrower in favor of Collateral Agent, for the benefit of LendersSecured Parties, as security for the Obligations. Distribution - Disposition — any declaration disposition (including pursuant to a Sale and Leaseback Transaction) of any or payment all of the Property (including without limitation the Equity Interests of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or any purchase, redemption, or other acquisition or retirement for value Subsidiary) of any Equity Interest; or any payment of management or advisory fees (or other fees of a similar nature) or out-of-pocket expenses in connection therewith by any Borrower to any holder of any Equity Interest of Parent or any Affiliate of such holder. Consolidated Document - — as defined in the UCC. Dollars - — lawful money of the United States. Domestic Subsidiary - Dominion Account — a Subsidiary (other than an Immaterial Subsidiary) special account established by Borrowers at Bank of America or another bank reasonably acceptable to Agent, over which is created or organized under the laws of the United States of America, any of its states or the District of ColumbiaAgent has exclusive control for withdrawal purposes. Eligible Assignee - — a Person that is (a) a Lender (other than a Defaulting Lender), U.S. based U.S.-based Affiliate of a Lender (other than an Obligor or any Subsidiary of an Obligora Defaulting Lender) or Approved Fund; (b) any other financial institution approved by Required Lenders and the Borrower Representative Agent (which approval by the Borrower Representative shall not be unreasonably withheld or delayed, ) and Borrower Agent (which approval shall not be unreasonably withheld or delayed and shall be deemed given if no objection is made within ten (10) five Business Days after Borrower Agent’s receipt of a written notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset asset-based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code ERISA or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Required Lenders Agent in their its discretion. Eligible Category A Inventory — crude and other feedstock and residuals acceptable to the Agent with readily available market values as reported by Xxxxx’x Oilgram for Gulf Coast Deliveries, finished fuel (including ethanol, gasoline, diesel and jet fuel) and work-in-process fuel Inventory owned by a Borrower which is Eligible Inventory. Eligible Reinvestment — (a) any acquisition (whether or not constituting a capital expenditure, but not constituting an Acquisition) of assets or any business (or any substantial part thereof) used or useful in the same or similar line of business as CSPP and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof) or any other business that generates gross income that constitutes “qualifying income” under Section 7704(d) of the Code and relates to the exploration for, or development, mining, production, ownership, operation, processing, refining, storage, transportation, marketing, distribution or other handling of, petroleum-based products, biofuels, feedstocks (including, without limiting the generality of the foregoing, oil and natural gas), and other minerals and fuels related to the foregoing, and (b) any Permitted Acquisition. Enforcement Action - — any action to enforce any Obligations or Loan Credit Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Laws - — any and all Applicable Laws (including all programsFederal, permits state, local, and guidance promulgated by regulatory agencies)foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or other legally binding governmental restrictions relating to public health (but excluding occupational safety pollution and health, to the extent regulated by OSHA) protection of the environment or the protection or pollution release of any materials into the environment, including CERCLAthose related to hazardous substances or wastes, RCRA air emissions and CWAdischarges to waste or public systems. Environmental Notice - a notice from Liability — any Governmental Authority liability, contingent or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, otherwise (including any complaintliability for damages, summonscosts of environmental remediation, citationfines, orderpenalties or indemnities), claimof CSPP, demand or request for correction, remediation or otherwise. Environmental Release - a release as defined in CERCLA or under any other Environmental Law. Equipment - as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest - the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. ERISA - the Employee Retirement Income Security Act of 1974. Event of Default - as defined in Section 10. Exchange Act - the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. Exchange Offer - that certain offer by Borrower Representative, completed as of July 23, 2009, pursuant to which Borrower Representative exchanged $117,832,000 in aggregate principal amount of its 7.875% debentures maturing July 15, 2009 and $13,790,000 in aggregate principal amount of its 7.625% debentures maturing October 15, 2017 for $120,590,000 in aggregate principal amount of its 2009 Debentures. Excluded Accounts - as defined in Section 7.5. Excluded Tax - with respect to Collateral Agent, any Lender Obligor or any other recipient of a payment to be made by their respective Subsidiaries directly or on account of any Obligation, (a) Taxes imposed on indirectly resulting from or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which any Borrower is a resident for tax purposes on the Closing Date; (c) any backup withholding Tax required by the Code to be withheld from amounts payable to a Payee that has failed or is unable to comply withbased upon
Appears in 1 contract
Samples: Credit Agreement
Deposit Account Control Agreements. the Deposit Account control agreements to be executed by each institution maintaining a Deposit Account for a BorrowerBorrower or Conferencing-Canada, in favor of Collateral Agent, for the benefit of LendersSecured Parties, as security for the Obligations, including the substantial equivalent prepared in conformity with standard Canadian legal practice for Deposit Account control agreements. 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; or any payment of management or advisory fees (or other fees of a similar nature) or out-of-pocket expenses in connection therewith by any Borrower to any holder of any Equity Interest of Parent or any Affiliate of such holder. Document - as defined in the UCC. Dollars - lawful money of the United States. Domestic Subsidiary Dominion Account - a Subsidiary (other than an Immaterial Subsidiary) special account established by Conferencing-Canada or Borrowers at Bank of America or its branches or another bank acceptable to Agent, over which is created or organized under Agent has exclusive control for withdrawal purposes, subject to the laws provisions of the United States of America, any of its states or the District of ColumbiaSections 7.2 and 8.2 hereof. Eligible Assignee - a Person that is (a) a Lender, U.S. - based Affiliate of a Lender (other than an Obligor or any Subsidiary of an Obligor) or Approved Fund; (b) any other financial institution approved by Required Lenders Agent and the Borrower Representative Agent (which approval by the Borrower Representative Agent shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten five (105) Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof (or under the laws of Canada or any province thereof), has total assets in excess of $5 billion, extends asset asset-based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code ERISA or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Required Lenders Agent in their its discretion. Eligible Billed Account - an Account owing to Conferencing-Canada or a Borrower that arises in the Ordinary Course of Business from the sale of goods or rendition of services for which an invoice has been issued by Conferencing-Canada or the Borrower, is payable in U.S. Dollars or, with respect to Accounts owing to Conferencing Canada, Canadian Dollars. Without limiting the foregoing, no Account shall be an Eligible Billed Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor are not Eligible Billed Accounts under the foregoing clause; (c) when aggregated with other Accounts owing by the Account Debtor or a group of affiliated Account Debtors, it exceeds 20% of the aggregate Eligible Billed Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time) of such Account Debtor or affiliated group; (d) it does not conform with a covenant or representation herein (without regard to any qualification of such representation as being to a Person’s knowledge); (e) it is owing by a creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; (g) the Account Debtor is organized or has its principal offices or assets outside the United States or Canada; (h) it is owing by a Government Authority, unless the Account Debtor is (x) the United States or any department, agency or instrumentality thereof and the Account has been assigned to Agent in compliance with the Assignment of Claims Act, or (y) Canada or any department, agency or instrumentality thereof and the Account has been assigned to Agent in compliance with the Financial Administration Act or other Applicable Law; (i) it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any other Lien; (j) the goods giving rise to it have not been delivered to and accepted by the Account Debtor or the amounts invoiced is otherwise unearned, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale; (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis; (m) it arises from a sale to an Affiliate, or from a sale on a bxxx-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis; (n) it represents unearned revenue, a progress billing or retainage; (o) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; (p) it arises from a retail sale to a Person who is purchasing for personal, family or household purposes; (q) it is not in respect of service at locations of an account debtor for which such service(s) has been disconnected; and (r) it arises in connection with a credit memo lag reserve, customer deposit or backbilled account. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded. Eligible Unbilled Accounts - shall mean all Accounts of Conferencing-Canada or Borrower that satisfy all of the criteria for Eligible Billed Accounts, as determined by Agent, except, that such Account Debtor has not been invoiced for the services which are the subject of such Account and the services that are the subject to the Account have been rendered to or on behalf of the Account Debtor prior to the creation of such Account. Any Accounts that are not Eligible Billed Accounts or Eligible Unbilled Accounts shall nevertheless be part of the Collateral. Enforcement Action - any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Laws - all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA. Environmental Notice - a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. Environmental Release - a release as defined in CERCLA or under any other Environmental Law. Equipment - as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles Telecommunications Equipment, Telecommunications Assets, computers (whether owned or licensed and including embedded software), and other tangible personal Property (other than InventoryInventory (as defined in the UCC)), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest - the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. ERISA - the Employee Retirement Income Security Act of 1974. Event of Default - as defined in Section 10. Exchange Act - the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. Exchange Offer - that certain offer by Borrower Representative, completed as of July 23, 2009, pursuant to which Borrower Representative exchanged $117,832,000 in aggregate principal amount of its 7.875% debentures maturing July 15, 2009 and $13,790,000 in aggregate principal amount of its 7.625% debentures maturing October 15, 2017 for $120,590,000 in aggregate principal amount of its 2009 Debentures. Excluded Accounts - as defined in Section 7.5. Excluded Tax - with respect to Collateral Agent, any Lender or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which any Borrower is a resident for tax purposes on the Closing Date; (c) any backup withholding Tax required by the Code to be withheld from amounts payable to a Payee that has failed or is unable to comply with.
Appears in 1 contract
