Bona Fide Eligible Accounts The Eligible Accounts are bona fide existing obligations. The property and services giving rise to such Eligible Accounts has been delivered or rendered to the account debtor or to the account debtor’s agent for immediate and unconditional acceptance by the account debtor. Borrower has not received notice of actual or imminent Insolvency Proceeding of any account debtor that is included in any Borrowing Base Certificate as an Eligible Account.
Annual Collateral Verification Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), Company shall deliver to Collateral Agent a certificate of an Authorized Officer either (i) confirming that there has been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section 5.1(o) or (ii) identifying such changes;
Set Up Accounts (a) Bank shall establish and maintain the following accounts ("Accounts"):
(i) a Securities Account in the name of Customer on behalf of each Fund for Financial Assets, which may be received by Bank or its Subcustodian for the account of Customer, including as an Entitlement Holder; and
(ii) an account in the name of Customer ("Cash Account") for any and all cash in any currency received by Bank or its Subcustodian for the account of Customer. Notwithstanding paragraph (ii), cash held in respect of those markets where Customer is required to have a cash account in its own name held directly with the relevant Subcustodian shall be held in that manner and shall not be part of the Cash Account. Bank shall notify Customer prior to the establishment of such an account.
(b) At the request of Customer, additional Accounts may be opened in the future, which shall be subject to the terms of this Agreement.
(c) Except as precluded by Section 8-501(d) of the Uniform Commercial Code ("UCC"), Bank shall hold all Securities and other Financial Assets, other than cash, of a Fund that are delivered to it in a "securities account" with Bank for and in the name of such Fund and shall treat all such assets other than cash as "financial assets" as those terms are used in the UCC.
Accounts Receivable and Payable The accounts receivable reflected on the Financial Statements arose in the ordinary course of business and, except as reserved against on the Financial Statements, are collectible in the ordinary course of business and consistent with past practices, free of any claims, rights or defenses of any account debtor. No accounts payable of the Company are over forty-five (45) days old.
Bank Accounts; Cash Balances (a) Each Party agrees to take, or cause the members of its Group to take, at the Effective Time (or such earlier time as the Parties may agree), all actions necessary to amend all contracts or agreements governing each bank and brokerage account owned by Varex or any other member of the Varex Group (collectively, the “Varex Accounts”) and all contracts or agreements governing each bank or brokerage account owned by Parent or any other member of the Parent Group (collectively, the “Parent Accounts”) so that each such Varex Account and Parent Account, if currently Linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds from or to, hereinafter “Linked”) to any Parent Account or Varex Account, respectively, is de-Linked from such Parent Account or Varex Account, respectively.
(b) It is intended that, following consummation of the actions contemplated by Section 2.9(a), there will be in place a cash management process pursuant to which the Varex Accounts will be managed and funds collected will be transferred into one (1) or more accounts maintained by Varex or a member of the Varex Group.
(c) It is intended that, following consummation of the actions contemplated by Section 2.9(a), there will continue to be in place a cash management process pursuant to which the Parent Accounts will be managed and funds collected will be transferred into one (1) or more accounts maintained by Parent or a member of the Parent Group.
(d) With respect to any outstanding checks issued or payments initiated by Parent, Varex, or any of the members of their respective Groups prior to the Effective Time, such outstanding checks and payments shall be honored following the Effective Time by the Person or Group owning the account on which the check is drawn or from which the payment was initiated, respectively.
(e) As between Parent and Varex (and the members of their respective Groups), all payments made and reimbursements received after the Effective Time by either Party (or member of its Group) that relate to a business, Asset or Liability of the other Party (or member of its Group), shall be held by such Party in trust for the use and benefit of the Party entitled thereto and, promptly following receipt by such Party of any such payment or reimbursement, such Party shall pay over, or shall cause the applicable member of its Group to pay over to the other Party the amount of such payment or reimbursement without right of set-off.
(f) It is understood and agreed that, effective as of the Effective Time, Varex and members of the Varex Group shall not have cash and cash equivalents in an aggregate amount that exceeds the Maximum Cash Amount; provided that cash and cash equivalents of XxXxx Medical Solutions AG shall not be included in the calculation of Maximum Cash Amount; provided, further, that, subject to 2.4(e), the Varex Delayed Asset Consideration shall not be included in the Maximum Cash Amount.
(g) Within thirty (30) days after the Distribution Date, Varex shall cause to be prepared in good faith and delivered to Parent a balance sheet (the “Balance Sheet”) setting forth cash and cash equivalents held by each member of the Varex Group as of the Effective Time (the aggregate amount of such cash and cash equivalents (other than the Delayed Varex Asset Consideration and cash and cash equivalents held by XxXxx Medical Solutions AG as of the Effective Time), the “Final Cash Balance”). For a period of sixty (60) days following delivery by Varex of the Balance Sheet or such longer period as Parent is disputing the amount of cash and/or cash equivalents reflected in the Balance Sheet, Parent may review and analyze the Balance Sheet and Varex shall cooperate with and make available to Parent and its Representatives all information, records, data and working papers, in each case, to the extent related to the determination of the amount of cash and cash equivalents held by the members of the Varex Group as of the Effective Time, and Varex shall permit access to its facilities and personnel, as may be reasonably required in connection with the review and analysis of the Balance Sheet.
(h) If the Final Cash Balance exceeds the Maximum Cash Amount, then Varex shall pay or cause to be paid an amount in cash equal to such difference to Parent by wire transfer of immediately available funds to an account or accounts designated in writing by Parent to Varex within five (5) Business Days after the date of delivery of the Balance Sheet. Any such payment shall be treated by the Parties for all purposes as an adjustment to the Cash Transfer. For the avoidance of doubt, if the Maximum Cash Amount is equal to or less than the Final Cash Balance, then Parent or any member of the Parent Group shall not have any obligation to pay or provide any cash or cash equivalents to any member of the Varex Group.
(i) If Parent disagrees with the amount of cash and/or cash equivalents reflected in the Balance Sheet, Parent and Varex shall attempt to resolve the dispute in good faith for thirty (30) days following the delivery to Parent of the Balance Sheet. Following such thirty (30) day period, Parent shall be entitled to dispute such amount or amounts pursuant to Article VII and shall be entitled to make an Arbitration Request without first complying with Section 7.1 or Section 7.2.
Eligible Accounts All of the Accounts owned by any Borrower and reflected in the most recent Borrowing Base Certificate delivered by such Borrower to Agent shall be “Eligible Accounts” for purposes of this Agreement, except any Account to which any of the exclusionary criteria set forth below applies. In addition, Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the criteria set forth below, to establish new criteria and to adjust advance rates with respect to Eligible Accounts, in its reasonable credit judgment exercised in good faith; provided, that (i) any increase of any advance rate above its Original Advance Rate is subject to the approval of all Lenders and (ii) any adjustment by Agent to any criterion set forth below that results in such criterion being less restrictive than as in effect on the Closing Date shall be subject to approval of Requisite Lenders. Eligible Accounts shall not include any Account of any Borrower:
(a) which does not arise from the sale of goods or the performance of services by such Borrower in the ordinary course of its business;
(b) upon which (i) such Borrower’s right to receive payment is contingent upon the fulfillment of any condition by such Borrower or (ii) such Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process;
(c) to the extent that any defense, counterclaim, setoff or dispute is asserted as to such Account;
(d) if the Account represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to such Borrower’s completion of further performance under such contract;
(e) that is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor;
(f) with respect to which an invoice, that is not unacceptable to Agent (in its reasonable judgment) in form and substance, has not been sent to the applicable Account Debtor;
(g) (i) that is not owned by such Borrower or (ii) to the extent it is subject to any right, claim, security interest or other interest of any other Person, other than Liens in favor of Agent, on behalf of itself and Lenders, and Trustee, on behalf of the holders of Senior Notes;
(h) that arises from a sale to any director, officer, other employee or Affiliate of any Credit Party, or to any entity that has any common officer or director with any Credit Party; provided, however, that a sale to any Person that is an Affiliate or such an entity shall not be excluded under this paragraph (h) if such Person is an Affiliate or such an entity solely because it is controlled by BRS or a fund managed by BRS;
(i) that is the obligation of an Account Debtor that is the United States or Canadian government or a political subdivision thereof, or any state, county, province or municipality or department, agency or instrumentality thereof unless Agent, in its sole discretion, has agreed to the contrary in writing and such Borrower, if necessary or desirable, has complied with the Federal Assignment of Claims Act of 1940, any Canadian equivalent thereof, or any applicable state, county or municipal law restricting assignment thereof, with respect to such obligation; provided, so long as no Default or Event of Default shall have occurred and be continuing, Accounts described in this Section 1.6(i) and identified to the Agent pursuant to Section 5.10 shall be deemed Eligible Accounts to the extent such Accounts in the aggregate outstanding at any time do not exceed $1,500,000 and otherwise meet the eligibility criteria set forth in this Section 1.6;
(j) that is the obligation of an Account Debtor located in a foreign country other than Canada (excluding the provinces of Newfoundland, the Northwest Territories and the Territory of Nunavit), unless payment thereof is assured by a letter of credit assigned and delivered to Agent, reasonably satisfactory to Agent as to form, amount and issuer;
(k) to the extent such Borrower or any Subsidiary thereof is liable for goods sold or services rendered by the applicable Account Debtor to such Borrower or any Subsidiary thereof but only to the extent of the potential offset;
(l) that arises with respect to goods that are delivered on a xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;
(m) that is in default; provided, that, without limiting the generality of the foregoing, an Account shall be deemed in default upon the occurrence of any of the following:
(i) the Account is not paid within the earlier of: sixty (60) days following its due date or ninety (90) days following its original invoice date;
(ii) the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or
(iii) a petition is filed by or against any Account Debtor obligated upon such Account under any bankruptcy law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;
(n) that is the obligation of an Account Debtor if fifty percent (50%) or more of the Dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in paragraph (m) of this Section 1.6;
(o) as to which Agent’s Lien thereon, on behalf of itself and Lenders, is not a first priority perfected Lien;
(p) as to which any of the representations or warranties in the Loan Documents are untrue;
(q) to the extent such Account is evidenced by a judgment;
(r) to the extent such Account exceeds any credit limit established by Agent, in its reasonable credit judgment;
(s) that is payable in any currency other than Dollars; or
(t) that is otherwise unacceptable to Agent in its reasonable credit judgment.
Accounts Receivable and Accounts Payable (a) The Seller agrees that it will utilize normal collection efforts consistent with past business practices of the Seller in collecting the outstanding accounts receivable of the Seller generated by the Purchased Assets as of the Effective Date. The Seller shall not undertake any formal collection action (whether legal action, referral to a collection agency or otherwise) with respect to any such Account Receivable without first consulting with the Buyer. The Seller agrees to pay, in a manner consistent with past business practice of the Seller, the outstanding accounts payable of the Seller as of the Effective Date. The Buyer shall not, and shall not permit its employees, officers, directors, independent contractors or agents to, directly or indirectly, encourage any customer of Seller not to make payment on any accounts receivable of Seller or commit any action which could reasonably lead or cause any customer not to make such a payment and the Buyer shall otherwise cooperate with Seller and its designees (and cause its personnel and accountants to cooperate) in Seller’s collection efforts.
(b) Both parties agree, as expeditiously as possible, to notify the Customers set forth on Exhibit 2.25, of the sale of the Purchased Assets, and to instruct such Customers that any monies due on invoices for service periods prior to the Effective Date shall be paid to Seller/Capital via the Capital lockbox mechanism, and all monies due on invoices for service periods subsequent to the Effective Date shall be paid to Buyer. The parties agree that in the event payments are received by either of the parties on accounts receivable from customers who are customers of both of the Buyer and Seller, and in the event that the customer has not provided instructions on the face of the remittance or any accompanying documentation or correspondence, the party receiving such payment shall contact the Customer to ascertain how the payment is to be applied. In the event such inquiry is unsuccessful, then such payments shall be applied first to the oldest outstanding invoice(s). In the event that either party receives proceeds of accounts receivable which belong to the other party, such party will immediately remit such proceeds, in kind, to the other party; provided, however, that, in the case of monies being received by Buyer and due to Seller, such proceeds shall be remitted to the Capital lockbox.
Interest Rates and Letter of Credit Fee Rates Payments and Calculations (a) Interest Rates. Except as provided in Section 2.13(c) and Section 2.15(a), all Obligations (except for the undrawn portion of the face amount of Letters of Credit) that have been charged to the Loan Account pursuant to the terms hereof shall bear interest at a per annum rate equal to the lesser of (i) the LIBOR Rate plus the Applicable Margin, or (ii) the maximum rate of interest allowed by applicable laws; provided, that following notice to Borrower in accordance with Section 2.15(a) hereof, all Obligations that have been charged to the Loan Account pursuant to the terms hereof shall bear interest at a per annum rate equal, during the duration of the circumstances described in Section 2.15(a), to the lesser of (A) the Base Rate plus the Applicable Margin as calculated pursuant to Section 2.15(a) or (B) the maximum rate of interest allowable by applicable laws.
Accounts Receivable; Accounts Payable (a) All accounts receivable of the Acquired Companies and their Subsidiaries, whether reflected on the Company Balance Sheet or subsequently created, are valid receivables that have arisen from bona fide transactions in the ordinary course of business consistent with past practice. All such accounts receivable are good and collectible (and subject to no setoffs or counterclaims) at the aggregate recorded amounts thereof, net of any applicable reserves for doubtful accounts reflected on the Company Balance Sheet as adjusted for operations and transactions through the Closing Date in accordance with past custom and practice of the Acquired Companies; provided, however, that nothing in the foregoing shall be construed as a guarantee of collectability. Each of the Acquired Companies and their Subsidiaries have good and marketable title to their respective accounts receivable, free and clear of all Liens, except for Permitted Liens. Since the Balance Sheet Date, there have not been any write-offs as uncollectible of any notes or accounts receivable of any of the Acquired Companies or any of their Subsidiaries, except for write-offs as uncollectible of doubtful accounts reflected on the Company Balance Sheet as adjusted for operations and transactions through the Closing Date in accordance with past custom and practice of the Acquired Companies.
(b) All accounts payable and notes payable of the Acquired Companies and their Subsidiaries, whether reflected on the Company Balance Sheet or subsequently created, are valid payables that have arisen from bona fide transactions in the ordinary course of business consistent with past practice. Since the Balance Sheet Date, the Acquired Companies and their Subsidiaries have paid their accounts payable in the ordinary course of their business and in a manner which is consistent with past practices.
Negative Capital Accounts No Member shall be required to pay to any other Member or the Company any deficit or negative balance which may exist from time to time in such Member’s Capital Account (including upon and after dissolution of the Company).
