Eligible Accounts. With respect to each Account, as of the date such Account is created and included as an Eligible Account: (i) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect to such Account and such documents are true and correct in all material respects; (ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment; (iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services; (iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason; (v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of business; (vi) to the knowledge of the Borrower, the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to the Account was executed; (vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has been billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account; (viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts; (ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations; (x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account; (xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing; (xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects; (xiii) such Account is (i) payable in the amount identified by Borrower; or,
Appears in 2 contracts
Samples: Loan and Security Agreement (Crdentia Corp), Loan and Security Agreement (Crdentia Corp)
Eligible Accounts. Administrative Agent and Lenders may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by the Borrowers with respect to any Account or Accounts. With respect to each Accountthe Eligible Accounts, as of the date such Account is created and included as an Eligible AccountBorrowers represent that:
(ia) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect to such Account and such documents The Eligible Accounts are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports they purport to be be, and is are not evidenced by a judgment;
(iiib) The Eligible Accounts arise out of a completed, bona fide sale and delivery of goods or rendition of Medical Services to a Patient by a Borrower in the ordinary course of its business and in accordance with the terms and conditions of all purchase orders, contracts, certification, participation, certificate of need, or other documents relating thereto and forming a part of the contract between such Borrower and the Account is Debtors;
(c) The Eligible Accounts are for a liquidated amount maturing as stated in an electronically generated or a duplicate claim or invoice covering such sale or rendition of Staffing Medical Services, a copy of which has been furnished or is available to Administrative Agent;
(ivd) To the Account is best of the Borrowers’ knowledge, the Eligible Accounts are, and Lenders’ security interest in such Accounts is, not, and will not (by voluntary act or omission by the Borrowers), be in the future, subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or assertedcondition, and each such Eligible Account is are absolutely owing to a Borrower and is are not contingent in any respect or for any reason;
(ve) To the best of the Borrowers’ knowledge, there are no facts, events or occurrences which that in any way impair the validity or enforceability of any the Eligible Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender Lenders with respect thereto other than adjustments made by Borrower in the ordinary course of businessthereto;
(vif) to To the knowledge best of the BorrowerBorrowers’ knowledge, the (i) each Account Debtor under the Eligible Account had the capacity to contract at the time any contract or other document giving rise to the Account was executed;executed and (ii) such Account Debtor is solvent; and
(viig) with the exceptions of The Eligible Accounts described in Section 2(a)(ii), the Account has been are being billed and forwarded to the each Account Debtor for payment in accordance with applicable laws Requirements of Law and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided such Accounts if due from a Medicaid, Medicare, TRICARE or an Approved Insurer are properly payable directly to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.), Credit Agreement (Genesis Healthcare, Inc.)
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of a Borrower's business;, and, to the Knowledge of Borrowers, are owed to such Borrower without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not,
(via) owed by an employee, Affiliate, or agent of any Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or on any other terms by reason of which the payment xx xhe Account Debtor may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) to the knowledge Knowledge of Borrowers, owed by an Account Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which any Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the Borrower, financial condition of such Account Debtor,
(f) on account of a transaction as to which the Account Debtor under the Account had the capacity to contract at the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account have not been performed and accepted by the Account Debtor,
(g) a right to receive progress payments or other advance billings that has been delivered are due prior to Lender is true and correct in all material respectsthe completion of performance by the xxxxxxxxle Borrower of the subject contract for goods or services, such that with respect to each such and
(h) an Account that has not been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 2 contracts
Samples: Credit Agreement (Deckers Outdoor Corp), Revolving Credit Agreement (Deckers Outdoor Corp)
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrowers’ business;, owed to Borrowers without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of a Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the knowledge of the Borrower, payment by the Account Debtor under may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which a Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account have not been performed and accepted by the Account Debtor,
(g) a right to receive progress payments or other advance xxxxxxxx that has been delivered are due prior to Lender is true and correct in all material respectsthe completion of performance by the applicable Borrower of the subject contract for goods or services, such that with respect to each such and
(h) an Account that has not been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 2 contracts
Samples: Loan and Security Agreement (LSB Industries Inc), Loan and Security Agreement (LSB Industries Inc)
Eligible Accounts. With respect to each AccountOn any date of determination of the Borrowing Base, all of the Accounts owned by any Borrower, as applicable, and reflected in the most recent Borrowing Base Certificate delivered by the Borrower Representative to the Collateral Agent and the Administrative Agent, shall be “Eligible Accounts” for the purposes of this Agreement, except any Account to which any of the date such Account is created and included as an exclusionary criteria set forth below applies. Eligible AccountAccounts shall not include any of the following Accounts:
(i) all documents and agreements relating to any Account in which the Account requested by Lender Collateral Agent, on behalf of the Secured Parties, does not have been delivered to Lender with respect to such Account and such documents are true and correct in all material respectsa valid perfected First Priority Lien;
(ii) the any Account is genuine and in all respects what it purports to be and that is not evidenced owned by a judgmentCredit Party;
(iii) any Account due from an Account Debtor that is not domiciled in the Account is for United States or Canada and (if not a liquidated amount maturing as stated in a duplicate claim natural person) organized under the laws of the United States or invoice covering such sale Canada or rendition of Staffing Servicesany political subdivision thereof;
(iv) the any Account that is not subject to payable in any offset, Lien (currency other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reasonDollars;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder Account that does not arise from the face amount sale of goods or the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made performance of services by Borrower such Credit Party in the ordinary course of its business;
(vi) to the knowledge any Account that does not comply with all applicable legal requirements, including, without limitation, all laws, rules, regulations and orders of the Borrower, the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to the Account was executedGovernmental Authority;
(vii) any Account which is owed by an Account Debtor located in any jurisdiction which requires filing of a “Notice of Business Activities Report” or other similar report in order to permit the applicable Borrower to seek judicial enforcement in such jurisdiction of payment of such Account, unless such Borrower (at the time the Account was created and at all times thereafter) (i) has qualified to do business in such jurisdiction and such qualification enables Borrower to seek judicial recourse in such jurisdiction, (ii) had filed and has filed and maintained effective such report with the exceptions appropriate office or agency of Accounts described in Section 2(a)(ii)such jurisdictions, as applicable, or (iii) was and has continued to be exempt from filing such report and has provided the Collateral Agent with satisfactory evidence thereof;
(viii) any Account has been billed and forwarded (a) upon which the right of a Borrower, as applicable, to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever unless such condition is satisfied or (b) as to which such Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial or administrative process or (c) that represents a progress billing consisting of an invoice for payment 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 a Borrower’s or any Guarantor’s, as applicable, completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;
(ix) to the extent that any defense, counterclaim, setoff or dispute is asserted as to such Account, it being understood that the amount of any such defense, counterclaim, setoff or dispute shall be disclosed to the Collateral Agent and that the remaining balance of the Account shall be eligible;
(x) [RESERVED]
(xi) any Account with respect to which an invoice or other electronic transmission constituting a request for payment, reasonably acceptable to the Collateral Agent in accordance with form and substance, has not been sent on a timely basis to the applicable laws Account Debtor according to the normal invoicing and compliance and conformance in all material respects timing procedures of a Borrower, as applicable;
(xii) any Account 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 and requisite proceduresCredit Party;
(xiii) to the extent Holdings or any Subsidiary is liable for goods sold or services rendered by the applicable Account Debtor to any Credit Party or any Subsidiary of a Credit Party but only to the extent of the potential offset;
(xiv) any Account that arises with respect to goods that are delivered on a xxxx-and-hold, requirements and regulations governing cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;
(xv) any Account 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:
(1) that portion of any Account that is more than sixty (60) days past due according to its original terms of sale or which has been written off or designated as uncollectible by such Borrower (and, for the avoidance of doubt, the remainder of any such Account shall not be in default for purposes hereof unless all Accounts of the applicable Account Debtor are ineligible pursuant to clause (xvi) below); or
(2) the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors, has become insolvent, admits in writing its inability to pay its bills as they become due or fails to pay its debts generally as they come due; or
(3) 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; or
(4) the payment terms (at inception or as modified from time to time) of any Account are not reasonably satisfactory to the Administrative Agent or Collateral Agent (it being understood that Borrowers’ customary terms as of the Closing Date are satisfactory to the Administrative Agent and the Collateral Agent);
(xvi) any Account that is the obligation of an Account Debtor (other than an individual) if 50% or more of the Dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in clause (xv) above;
(xvii) any Account as to which any of the representations or warranties in the Loan Documents are untrue;
(xviii) to the extent such Account is evidenced by a judgment, Instrument or Chattel Paper;
(xix) to the extent (A) the Accounts owing from such Account Debtor and its Affiliates to the Borrowers exceeds 20% of the aggregate of all Eligible Accounts or (B) exceeds any credit limit established by the Collateral Agent, in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment, following prior notice of such limit by the Collateral Agent to the Borrower Representative;
(xx) that portion of any Account (1) in respect of which there has been, or should have been, established by a Borrower or any Guarantor a contra account, whether in respect of contractual allowances with respect to such Account, audit adjustment, anticipated discounts or otherwise or (2) which is due from an Account Debtor to whom any Credit Party owes a trade payable, but only to the extent of such trade payable;
(viiixxi) Borrower any Account on which the Account Debtor is a Governmental Authority, unless a Credit Party, as applicable, has obtained and currently has all licenses, permits and authorizations that are necessary in the generation assigned its rights to payment of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;Administrative Agent pursuant to the Assignment of Claims Act of 1940, as amended, in the case of a federal Governmental Authority, and pursuant to applicable law, if any, in the case of any other Governmental Authority, and such assignment has been accepted and acknowledged by the appropriate government officers; or
(xxxii) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any which is due from an Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that structured as note payable or has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,restructured as a note payable.
Appears in 2 contracts
Samples: Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc)
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrower's business;, owed to Borrower without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or on any other terms by reason of which the payment xx xhe Account Debtor may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account, except to the knowledge extent previously disclosed to Agent,
(e) owed by an Account Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the Borrower, financial condition of such Account Debtor,
(f) on account of a transaction as to which the Account Debtor under the Account had the capacity to contract at the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account have not been performed and accepted by the Account Debtor,
(g) a right to receive progress payments or other advance billings that has been delivered are due prior to Lender is true and correct in all material respectsthe completion of performance by Borrxxxx xx the subject contract for goods or services, such that with respect to each such and
(h) an Account that has not been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 1 contract
Samples: Loan and Security Agreement (Leapfrog Enterprises Inc)
Eligible Accounts. With respect As to each Account, as of Account that is identified by the date such Account is created and included Borrower as an Eligible AccountAccount in a Borrowing Base Certificate submitted to the Administrative Agent, such Account is:
(a) genuine and in all material respects what it purports to be;
(b) a bona fide existing payment obligation of the Account Debtor created by the completed sale and delivery of Inventory or the rendition of services to such Account Debtor in the ordinary course of the Borrower’s business, and substantially in accordance with any purchase order, contract or other document relating thereto;
(i) all documents and agreements relating owed to the Account requested by Lender have Borrower without any known defenses, disputes, offsets, counterclaims, or rights of return or cancellation, (ii) is not subject to any extension, modification, deduction, discount or return that has been delivered to Lender authorized or which is in process with respect to such Account (except discounts or allowances granted in the ordinary course of the Borrower’s business for prompt payment that are reflected on the face of the invoice related thereto and such documents are true in the reports submitted to the Administrative Agent xxxxxxxxx), and correct in all material respects(iii) the Borrower is shown as the sole payee or remittance party on each applicable invoice;
(d) for a sum certain, maturing as stated in any applicable invoice, a copy of which has been furnished to the Administrative Agent or is available to the Administrative Agent on request;
(e) not subject to any terms in a purchase order, agreement, document or Applicable Law that restricts assignment of the Account to the Administrative Agent or the Collateral Agent (regardless of whether, under the Uniform Commercial Code, the restriction is ineffective);
(f) [reserved];
(g) not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Administrative Agent-discretionary criteria) set forth in the definition of Eligible Accounts; and
(h) to the Borrowers’ knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectability of such Account; (ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of business;
(vi) to the knowledge of the Borrower, the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to when the Account was executed;
(vii) with arose, continues to meet the exceptions of Accounts described in Section 2(a)(ii)Borrower’s customary credit standards, the Account has been billed is Solvent, is not contemplating or subject to an Insolvency Proceeding, and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not madefailed, or suspended or ceased doing business; and will not make without concurrent written notice provided to Lender, any agreement with (iii) there are no proceedings or actions threatened or pending against any Account Debtor for any extension of the time for payment of the Accountthat could, any compromise individually or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed aggregate, reasonably be expected to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all have a material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to adverse effect on the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,Debtor’s financial condition.
Appears in 1 contract
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.)
Eligible Accounts. With respect Upon Borrower's delivery to each AccountLender of an Accounts Report, as Lender shall determine, in its sole and absolute discretion and in the exercise of good faith, which individual Accounts listed thereon are Eligible Accounts. In making this determination, Lender will consider the date such Account is created and included as an Eligible Accountfollowing requirements:
(iA) all documents and agreements relating to If the individual Account requested by Lender arises from the sale of goods, such goods have been shipped or delivered on open account and on an absolute sale basis and not on consignment, on approval or on a sale-or-return basis or subject to Lender with respect to any other repurchase or return agreement and no material part of such Account and such documents are true and correct goods has been returned (other than returns described in all material respectsSection 7.4), repossessed, rejected, lost or damaged;
(iiB) the The individual Account is genuine and in all respects what it purports to be and is not evidenced by a judgmentchattel paper or an instrument of any kind;
(iiiC) the The Account Debtor obligated on such individual Account is for a liquidated amount maturing as stated in a duplicate claim not insolvent or invoice covering the subject of any bankruptcy or insolvency proceeding of any kind and Lender is satisfied with the creditworthiness of such sale or rendition of Staffing ServicesAccount Debtor;
(ivD) If the individual Account is owing from an Account Debtor located outside the United States, such Account Debtor has furnished the Borrower with an irrevocable letter of credit which has been issued or confirmed by a financial institution acceptable to Lender, is in form and substance acceptable to Lender, has been pledged to Lender, and is payable in United States dollars in an amount not less than the face value of the individual Account;
(E) The individual Account is a valid, legally enforceable obligation of the relevant Account Debtor and such Account Debtor has not asserted any offset, counterclaim or defense denying liability thereunder; provided, however, that if such offset, counterclaim or defense has been asserted, such Account shall be ineligible only to the extent of such asserted offset, counterclaim or defense;
(F) The individual Account is subject to and covered by Lender's perfected security interest and is not subject to any offsetother lien, Lien (other than a Lien of Lender claim, encumbrance or a security interest, except for the Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reasonLiens;
(vG) there are no facts, events The individual Account is evidenced by an invoice or occurrences which other documentation in any way impair the validity or enforceability of any Accounts or tend form acceptable to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of businessLender;
(viH) to The individual Account has not remained unpaid for a period exceeding ninety (90) days after the knowledge of the Borrower, the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to the Account was executedrelated invoice date;
(viiI) with the exceptions Accounts owing by a single Account Debtor or its Affiliate (whether or not such Affiliate is known by Borrower to be an Affiliate of Accounts described in Section 2(a)(iisuch Account Debtor), including currently scheduled Accounts, if fifty percent (50%) or more of the Account has been billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment balance owing by such Account Debtor and its Affiliates, in the aggregate, upon Accounts remain ineligible by reason of the criteria set forth in clause (H) above;
(J) The individual Account is not owing from an employee, officer, agent, director or stockholder of Borrower or any Affiliate or from the United States of America or any department, agency or instrumentality thereof;
(K) Accounts with respect to which the Account Debtor is a director, officer, employee or agent of Borrower, or is a subsidiary or an Affiliate;
(L) Each of the warranties and representations set forth in Section 9.2 has been reaffirmed with respect to such Accountindividual Account at the time that the most recent Accounts Report was delivered to Lender;
(viiiM) Borrower has obtained The individual Account is one against which Lender is legally permitted to make loans and currently has all licenses, permits and authorizations that are necessary in the generation of such Accountsadvances;
(ixN) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to If the Account Debtor all requested supporting claim documents and all information set forth is located in the invoice and supporting claim documents is trueState of New Jersey, complete and correct in all material respects;Accounts of such Account Debtor unless Borrower has filed a Notice of Business Activities Report with the New Jersey Division of Taxation for the then current year; and
(xiiiO) If the Account Debtor is located in the State of Minnesota, all Accounts of such Account is (i) payable in Debtor unless Borrower has filed a Business Activity Report with the amount identified by Borrower; or,Minnesota Department of Revenue.
Appears in 1 contract
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing ----------------- payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrower's business;, owed to Borrower without defenses, disputes, offsets counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the knowledge of the Borrower, payment by the Account Debtor under may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account that has have not been delivered to Lender is true performed and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to accepted by the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; orDebtor,
Appears in 1 contract
Samples: Loan and Security Agreement (DSG International LTD)
Eligible Accounts. With respect The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the sale and delivery of Inventory or the rendition of services to such Account Debtors in the ordinary course of the Borrower's business, owed to the Borrower without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, as of the date such Account is created and included as an Eligible Accountnot:
(i) all documents and agreements relating to the Account requested owed by Lender have been delivered to Lender with respect to such Account and such documents are true and correct in all material respects;an employee, Affiliate, or agent of Borrower,
(ii) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the payment by the Account is genuine and in all respects what it purports to Debtor may be and is not evidenced by a judgmentconditional;
(iii) the Account is for a liquidated amount maturing as stated payable in a duplicate claim or invoice covering such sale or rendition of Staffing Services;currency other than Dollars,
(iv) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;,
(v) there are no facts, events owed by an Account Debtor that is subject to any Insolvency Proceeding or occurrences is not Solvent or as to which in any way impair the validity Borrower has received notice of an imminent Insolvency Proceeding or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount a material impairment of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course financial condition of business;such Account Debtor,
(vi) on account of a transaction as to which the knowledge of the Borrower, goods giving rise to such Account have not been shipped and billed to the Account Debtor under or the Account had the capacity to contract at the time any contract or other document services giving rise to such Account have not been performed and accepted by the Account was executed;Debtor,
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has been billed and forwarded a right to receive progress payments or other advance xxxxxxxx that are due prior to the Account Debtor completion of performance by Borrower of the subject contract for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite proceduresgoods or services, requirements and regulations governing payment by such Account Debtor with respect to such Account;and
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such an Account that has not been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 1 contract
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing ----------------- payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrowers' business;, owed to Borrowers without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of a Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the knowledge of the Borrower, payment by the Account Debtor under may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which a Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account have not been performed and accepted by the Account Debtor,
(g) a right to receive progress payments or other advance xxxxxxxx that has been delivered are due prior to Lender is true and correct in all material respectsthe completion of performance by the applicable Borrower of the subject contract for goods or services, such that with respect to each such and
(h) an Account that has not been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 1 contract
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing ----------------- payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect delivery of Inventory to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrowers' business;, owed to Borrowers without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of a Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the knowledge of the Borrower, payment by the Account Debtor under may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which a Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;Debtor,
(viiig) Borrower has obtained and currently has all licenses, permits and authorizations a right to receive progress payments or other advance xxxxxxxx that are necessary in due prior to the generation completion of such Accounts;performance by the applicable Borrower of the subject contract for goods or services, and
(ixh) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such an Account that has not been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 1 contract
Eligible Accounts. With All of the Accounts owned by Borrower and reflected in the most recent Borrowing Base Certificate delivered by Borrower to Agent shall be “Eligible -10-
(i) upon which Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever or (ii) as to which Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process, or (iii) 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 Borrower’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer; (c) to the extent that any defense, counterclaim, setoff or dispute is asserted as to such Account; (d) 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; (e) with respect to each Accountwhich an invoice, as reasonably acceptable to Agent in form and substance, has not been sent to the applicable Account Debtor; (f) that (i) is not owned by Borrower or (ii) 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; (g) 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; (h) that is the obligation of an Account Debtor that is the United States government or a political subdivision thereof, or any state, county or municipality or department, agency or instrumentality thereof unless Agent, in its sole discretion, has agreed to the contrary in writing and Borrower, if necessary or desirable, has complied with respect to such obligation with the Federal Assignment of Claims Act of 1940, or any applicable state, county or municipal law restricting the assignment thereof with respect to such obligation; it being understood that the University of California shall be an eligible Account Debtor notwithstanding this clause (h); -11-
(i) that is the obligation of an Account Debtor located in a foreign country;
(j) to the extent Borrower or any Subsidiary thereof is liable for goods sold or services rendered by the applicable Account Debtor to Borrower or any Subsidiary thereof but only to the extent of the date such potential offset;
(k) that arises with respect to goods that are delivered on a bilx-xxd-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 created and included as or may be conditional;
(l) that is in default; provided, that, without limiting the generality of the foregoing, an Eligible AccountAccount shall be deemed in default upon the occurrence of any of the following:
(i) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect to is not paid within the earlier of: 60 days following its due date except for Extended Accounts for which such Account and time period shall be one hundred twenty (120) days from the date set forth on the original invoice (the amount of any such documents are true and correct in all material respectsAccounts excluded shall be the gross amount before the application of any credits);
(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 genuine 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;
(m) that is the obligation of an Account Debtor if 50% or more of the Dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in this Section 1.6;
(n) as to which Agent’s Lien thereon, on behalf of itself and in all respects what it purports to be and Lenders, is not a first priority perfected Lien;
(o) as to which any of the representations or warranties in the Loan Documents are untrue;
(p) to the extent such Account is evidenced by a judgment, Instrument or Chattel Paper;
(iiiq) to the extent such Account is for a liquidated amount maturing as stated exceeds any credit limit established by Agent, in a duplicate claim or invoice covering such sale or rendition of Staffing Servicesits reasonable credit judgment;
(ivr) to the extent that such Account, together with all other Accounts owing to such Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment Debtor and its Affiliates as of any kind date of determination exceed 10% of all Eligible Accounts;
(in each case other that any such item that is taken into account in determining the net amount of such Accounts) that is known payable in any currency other than Dollars; -12-
(t) that is an undue credit risk or is otherwise unacceptable to Agent in its reasonable credit judgment;
(u) that does not reflect all credits for the particular Account Debtor as shown on the schedule setting forth the aging submitted by the Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent required in any respect or for any reason;the Agreement.
(v) there are no facts, events that arises from a sale to an Account Debtor which is an inventory or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount trade supplier of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of businessBorrower;
(viw) to which an Account Debtor has objected to the knowledge quality or quantity of goods or services of the BorrowerBorrower sold, the Account Debtor under the Account had the capacity or shall have rejected, returned, or refused to contract at the time any contract accept such goods or other document giving rise to the Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has been billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;services; or
(x) that is an Account which contravenes, or arises from a sale which contravenes, any requirement of law applicable thereto.
(y) that does not reflect all credits for the particular Account Debtor as shown on the schedule setting forth the aging of such Eligible Account, submitted by the Borrower as reflected required in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,this Agreement.
Appears in 1 contract
Eligible Accounts. Administrative Agent and Lenders may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by the Borrowers with respect to any Account or Accounts. With respect to each Accountthe Eligible Accounts, as of the date such Account is created and included as an Eligible AccountBorrowers represent that:
(ia) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect to such Account and such documents The Eligible Accounts are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports they purport to be be, and is are not evidenced by a judgment;
(iiib) The Eligible Accounts arise out of a completed, bona fide sale and delivery of goods or rendition of Medical Services to a Patient by a Borrower in the ordinary course of its business and in accordance with the terms and conditions of all purchase orders, contracts, certification, participation, certificate of need, or other documents relating thereto and forming a part of the contract between such Borrower and the Account is Debtors;
(c) The Eligible Accounts are for a liquidated amount maturing as stated in an electronically generated or a duplicate claim or invoice covering such sale or rendition of Staffing Medical Services, a copy of which has been furnished or is available to Administrative Agent;
(ivd) To the Account is best of the Borrowers’ knowledge, the Eligible Accounts are, and Lenders’ security interest in such Accounts is, not, and will not (by voluntary act or omission by the Borrowers), be in the future, subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or assertedcondition, and each such Eligible Account is are absolutely owing to a Borrower and is are not contingent in any respect or for any reason;
(ve) To the best of the Borrowers’ knowledge, there are no facts, events or occurrences which that in any way impair the validity or enforceability of any the Eligible Accounts or tend to reduce the amount payable thereunder from Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility) CHICAGO/#3103747.13103747.3A
(f) To the face amount best of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of business;
Borrowers’ knowledge, (vii) to the knowledge of the Borrower, the each Account Debtor under the Eligible Account had the capacity to contract at the time any contract or other document giving rise to the Account was executed;executed and (ii) such Account Debtor is solvent; and
(viig) with the exceptions of The Eligible Accounts described in Section 2(a)(ii), the Account has been are being billed and forwarded to the each Account Debtor for payment in accordance with applicable laws Requirements of Law and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided such Accounts if due from a Medicaid, Medicare, TRICARE or an Approved Insurer are properly payable directly to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.)
Eligible Accounts. With respect The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the sale and delivery of Inventory or the rendition of services to each Account, as Obligors' customers in the ordinary course of the date Obligors' business, owed to an Obligor without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. Any goods giving rise to such Account is created and included as an Eligible Account:
(i) all documents and agreements relating to the Account requested by Lender Accounts have been delivered to Lender with respect the customer, or to the customer's agent for immediate shipment to the customer, and any services giving rise to such Account and Eligible Accounts have been fully performed. As to each Eligible Account, such documents are true and correct right to payment is not, unless an exception to any of the following has been consented to in all material respects;writing by Agent:
(iia) the Account is genuine and in all respects what it purports to be and is not evidenced owed by a judgment;an employee, Affiliate, or agent of any Borrower,
(iiib) the Account is for on account of a liquidated amount maturing as stated in transaction wherein goods were placed on consignment or were sold pursuant to a duplicate claim or invoice covering such guaranteed sale, a sale or rendition of Staffing Services;
(iv) the Account is not subject return, a sale on approval, a bill xxx hold, or pursuant to any offset, Lien other agreement providing for repurchase or return (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known pursuant to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments warranties made by Borrower in the ordinary course of business;),
(vic) payable in a currency other than Dollars (in the case of Eligible Domestic Accounts) or Canadian dollars (in the case of Eligible Canadian Accounts),
(d) owed by an Account Debtor that has (unless the Account Debtor has provided to the Agent an enforceable "non-offset" letter in form and substance reasonably satisfactory to the Agent) or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to honor the Obligor's right to payment (unless such asserted right of setoff, dispute, or claim has been disclosed in writing to Agent, in which case, such representation shall only be made to the extent of such Account that is not the subject of such setoff, dispute, or claim),
(e) owed by an Account Debtor that, to the knowledge of the BorrowerBorrowers, is subject to any Insolvency Proceeding or is not Solvent and no Obligor has received notice of an imminent Insolvency Proceeding involving the Account Debtor under or a material impairment of the financial condition of the applicable Account had Debtor,
(f) on account of a transaction as to which the capacity goods, the sale of which gives rise to contract at such right to payment, have not been delivered to the time any contract Obligor's customer or other document the services giving rise to the Account was executed;such right to payment have not been fully performed,
(viig) with a right to receive progress payments or other advance billxxxx xxxt are due prior to the exceptions completion of Accounts described in Section 2(a)(ii)the performance by the Obligor that is to give rise to the subject right to payment, the Account and
(h) on account of a transaction that has not been billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
customer (viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation case of such Eligible Accounts other than Eligible Unbilled Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account or is not to secure be billed to the Obligations;
(x) the aging customer within 30 days of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
determination (xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course case of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,Eligible Unbilled Accounts).
Appears in 1 contract
Eligible Accounts. With respect Upon the delivery by Borrower to each AccountLender of an Accounts Report, as of Lender shall determine, in its sole and absolute discretion, which individual Accounts listed thereon are Eligible Accounts. In making this determination, Lender will consider the date such Account is created and included as an Eligible Accountfollowing requirements:
(ia) all documents and agreements relating to If the individual Account requested by Lender arises from the sale of goods, such goods have been shipped or delivered on open account and on an absolute sale basis and not on consignment, on approval or on a sale-or-return basis or subject to Lender with respect to any other repurchase or return agreement and no material part of such Account and such documents are true and correct goods has been returned (other than returns described in all material respectsSection 7.4), repossessed, rejected, lost or damaged;
(iib) the The individual Account is genuine and in all respects what it purports to be and is not evidenced by a judgmentchattel paper or an instrument of any kind;
(iiic) the The Account Debtor obligated on such individual Account is for a liquidated amount maturing as stated in a duplicate claim not insolvent or invoice covering the subject of any bankruptcy or insolvency proceeding of any kind and Lender is satisfied with the creditworthiness of such sale or rendition of Staffing ServicesAccount Debtor;
(ivd) If the individual Account is owing from an Account Debtor located outside the United States or Canada, such Account Debtor has furnished Borrower with an irrevocable letter of credit which has been issued or confirmed by a financial institution acceptable to Lender, is in form and substance acceptable to Lender, has been pledged to Lender, and is payable in United States dollars in an amount not less than the face value of the individual Account;
(e) The individual Account is a valid, legally enforceable obligation of the relevant Account Debtor and such Account Debtor has not asserted any offset, counterclaim or defense denying liability thereunder; provided, however, that if such offset, counterclaim or defense has been asserted, such Account shall be ineligible only to the extent of such asserted offset, counterclaim or defense;
(f) The individual Account is subject to and covered by Lender's perfected security interest and is not subject to any offsetother lien, Lien (other than a Lien of Lender claim, encumbrance or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reasonsecurity interest;
(vg) there are no facts, events The individual Account is evidenced by an invoice or occurrences which other documentation in any way impair the validity or enforceability of any Accounts or tend form acceptable to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of businessLender;
(vih) to The individual Account (x) has not remained unpaid as of thirty-five (35) days from the knowledge date of original invoice, if no due date is specified or if a due date is specified, has not remained unpaid as of twenty-eight (28) days after the due date but in no event more than fifty- eight (58) days following the original date of the Borrower, the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to the Account was executed;
invoice and (viiy) with the exceptions of Accounts described in Section 2(a)(ii), the Account has been billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such is not owing from an Account Debtor with respect to which more than twenty-five percent (25%) of the balance of all individual Accounts owing from such AccountAccount Debtor has remained unpaid for the applicable period specified in clause (x) above;
(viiii) If the Account Debtor is located in the State of New Jersey, Borrower has obtained and currently has all licenses, permits and authorizations that are necessary filed a Notice of Business Activities Report (or equivalent report) with the appropriate officials in such states for the generation of such Accountsthen current year;
(ixj) The individual Account is not owing from an employee, officer, agent, director, stockholder of Borrower or any Affiliate or from the United States of America or any department, agency or instrumentality thereof;
(k) Each of the warranties and representations set forth in Section 9.2 has been reaffirmed with respect to such individual Account at the time that the most recent Accounts Report was delivered to Lender;
(l) The individual Account is one against which Lender has a perfectedis legally permitted to make loans and advances;
(m) If the Account Debtor is the United States of America or any department, first-priority security interest in agency or instrumentality thereof, Borrower must have assigned its right to payment of such Account to secure Lender, in a manner satisfactory to Lender, so as to comply with the ObligationsAssignment of Claims Act of 1940 (31 U.S.C. Section 203 et seq., as amended);
(xn) The Account does not arise out of a sale or order that has not yet been shipped and invoiced; and
(o) The Account does not arise out of COD/cash sale, counter sale or backhaul; provided, however, that in the aging event an Account arises out of a COD/cash sale or counter sale that is less than seven (7) days past due then such Account shall be deemed an Eligible Account; provided further that the aggregate amount of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and Accounts shall not from the date of billing or at any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,exceed $200,000.
Appears in 1 contract
Eligible Accounts. With respect to each Account, as of the date such Account is created and included as an Eligible Account:
(i) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower in the ordinary course of business;
(vi) to the knowledge of the Borrower, the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to the Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has been billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,, (ii) to the knowledge of Borrower the legally enforceable obligation of such Account Debtor, and (iii) an account receivable or general intangible within the meaning of the UCC of the state in which Borrower is “located” (within the meaning of such term in the UCC);
(xiv) no such Account (i) after giving effect to the provisions of the UCC, requires the approval of any third person for such Account to be assigned to Lender hereunder, or (ii) is past, or within 120 days of, the statutory limit for collection applicable to the Account Debtor;
(xv) Borrower does not have any guaranty of, letter of credit support for, or collateral security for, such Account, other than any such guaranty, letter of credit or collateral security to which Lender has a Lien;
(xvi) the fees and charges charged for the services constituting the basis for such Account were when rendered and are currently consistent with (i) the usual, customary and reasonable fees charged by Borrower or (ii) pursuant to negotiated fee contracts, or imposed fee schedules, with or by the applicable Account Debtors;
(xvii) if requested by Lender, a copy of each related contract and provider agreement to which Borrower is a party has been delivered to Lender unless Borrower shall have, prior to the related funding date, certified to Lender that such delivery is prohibited by the terms of the contract or by law, and the circumstances of such prohibition; and
(xviii) such Account was (or if unbilled, will be (nothing herein implying any obligation of Lender to make advances in respect of unbilled Accounts other than as provided in Section 2(a)(ii))) in any event billed no later than thirty (30) days after the date the services or goods giving rise to such Account were rendered or provided, as applicable, and each xxxx (other than bills delivered prior to the date that the lockbox agreements are in effect), contains an express direction requiring the Account Debtor to remit payments to the applicable lockbox linked to the applicable Account Debtor Collection Lockbox Account. If a breach of any of the representations or warranties contained herein relating to an Account may, in the reasonable credit judgment of Lender have a Material Adverse Effect upon the validity, legality or collectibility of such Account, then such Account shall no longer be deemed an “Eligible Account” as defined in Section 1(a) hereof.
Appears in 1 contract
Eligible Accounts. With respect to each Account, as All Accounts of Borrower meeting all of the date such Account is created and included as an Eligible Account:
following specifications: (i) all documents and agreements relating to the Account requested is lawfully and exclusively owned by Borrower and subject to a first priority Lien in favor of Lender have been delivered and subject to Lender with respect no other Lien (other than Permitted Liens, if applicable, and Liens granted under this Agreement) and Borrower has the right of assignment thereof and the power to such Account and such documents are true and correct in all material respects;
grant a security interest therein; (ii) the Account is genuine and in all respects what it purports to be does not represent a rebilling and is valid and enforceable representing the undisputed indebtedness of an Account Debtor not evidenced more than ninety (90) days past the original invoice date (other than with respect to Accounts owing by a judgment;
any Blue Chip Customer, which shall not be more than one hundred and twenty (120) days past the original invoice date); (iii) not more than fifty percent (50%) of the aggregate balance of all Accounts owing from an Account Debtor obligated on the Account is for a liquidated amount maturing as stated in a duplicate claim are outstanding more than sixty (60) days past their original due dates or ninety (90) days past their original invoice covering such sale or rendition of Staffing Services;
dates; (iv) the amount of the Account, when aggregated with all other Accounts of such Account Debtor, is less than fifteen percent (15%) of the face value of all Accounts of Borrower then outstanding; (v) the Account is not a contra Account and is not subject to any offsetdefense, Lien (other than a Lien of Lender set-off, or a Permitted Lien), recoupmentcounterclaim, deduction, defensediscount, disputecredit, counterclaim or any other adverse condition chargeback, freight claim, allowance or adjustment of any kind kind; (in each case vi) the Account is net of any portion thereof attributable to the sale of goods that have been returned, rejected, lost or damaged; (vii) if the Account arises from the sale of goods by Borrower, such sale was an absolute sale and not on consignment or on approval or on a sale-or-return basis nor subject to any other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing repurchase or assertedreturn agreement, and each such goods have been shipped to the Account is absolutely owing to Borrower and is not contingent in any respect Debtor or for any reason;
its designee; (vviii) there are no facts, events or occurrences which in any way impair if the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder Account arises from the face amount performance of services, such services have actually been performed and have been approved by the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Account Debtor; (ix) the Account arose in the ordinary course of Borrower's business;
; (vix) to the knowledge no notice of the Borrowerbankruptcy, receivership, reorganization, liquidation, dissolution, or insolvency of the Account Debtor under has been received by Lender or Borrower; (xi) the Account had is an Account for which Lender believes that the capacity validity, enforceability or collection of the Account is not invalid or otherwise impaired; (xii) the Account Debtor is not a Subsidiary or Affiliate of Borrower; (xiii) the sale does not represent a sale pursuant to a government contract at unless Borrower has complied, for the time benefit of Lender, with the Assignment of Claims Act; (xiv) the Account is not an Account of an Account Debtor having its principal place of business or executive office outside the United States, unless the payment of such Account is guaranteed by an irrevocable letter of credit satisfactory to Lender or by credit insurance, satisfactory to Lender; (xv) the Account is not an Account on which the Account Debtor is obligated to Borrower under any contract or other document giving Instrument; (xvi) the transaction which gave rise to the Account was executed;
complies in all respects with all applicable laws, rules and regulations of any Governmental Authority; (viixvii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has been billed and forwarded transaction which gave rise to the Account Debtor for payment in accordance with applicable laws did not involve the issuance of a performance bond; and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(xxviii) the aging Account meets such other reasonable specifications and requirements which may from time to time be established by Lender. Eligible Accounts shall not include that portion of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible an Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is representing (i) payable interest or finance charges for past due balances or debit memos and (ii) Xxxxxxxx in the amount identified by Borrower; or,Excess of Cost.
Appears in 1 contract
Samples: Loan and Security Agreement (WPCS International Inc)
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrowers' business;, owed to Borrowers without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of a Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the knowledge of the Borrower, payment by the Account Debtor may be conditional,
(c) payable in a currency other than Dollars (except as provided under Section 2.18),
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which a Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account have not been performed and accepted by the Account Debtor,
(g) a right to receive progress payments or other advance xxxxxxxx that has been delivered are due prior to Lender is true and correct in all material respectsthe completion of performance by the applicable Borrower of the subject contract for goods or services, such that with respect to each such and
(h) an Account that has not been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of DF's business;, owed to DF without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or Lender of DF,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or on any xxxxr terms by reason of which the knowledge of the Borrower, payment by the Account Debtor under may be conditional,
(c) payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which DF has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and/or billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account that has have not been delivered to Lender is true performed and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to accepted by the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is trueDebtor, complete and correct in all material respects;and
(xiiig) such Account is (i) payable in a right to receive progress payments or other advance billings that are due xxxxx xx the amount identified completion of performance by Borrower; or,DF of the subject contract for goods or services.
Appears in 1 contract
Eligible Accounts. With respect As to each AccountAccount that is identified by Borrowers as an Eligible Account or Eligible Unbilled Account in any Borrowing Base Certificate submitted, as of the date such Account is created and included as an Eligible Account or Eligible Unbilled Account (as the case may be). Without limiting the generality of the foregoing, Borrowers represent that each such Account:
(ia) all documents and agreements relating to the Account requested by Lender have been delivered to Lender with respect to such Account and such documents are true and correct in all material respects;
(ii) the Account it is genuine and in all respects what it purports to be and is not evidenced by a judgmentbe;
(iiib) it arises out of a completed, bona fide sale and delivery of goods or rendition of services in the Account ordinary course of business, and substantially in accordance with any purchase order, contract or other document relating thereto;
(c) it is for a liquidated amount sum certain, maturing as stated in the applicable invoice, a duplicate claim copy of which has been furnished or invoice covering such sale or rendition of Staffing Servicesis available to the Administrative Agent on request;
(ivd) it is not subject to any Lien (other than the Account Administrative Agent’s Liens);
(e) it is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account an amount not to exceed $250,000 in determining the net amount of such Account) that is known to Borrower aggregate, except as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower arising in the ordinary course of business; and it is absolutely owing by the Account Debtor, without contingency in any respect;
(vif) no purchase order, agreement, document or applicable Law restricts assignment of the Account to the Administrative Agent (regardless of whether, under the UCC, PPSA or other applicable Law, the restriction is ineffective), and the applicable Borrower is the sole payee or remittance party shown on the invoice;
(g) no extension, compromise, settlement, modification, credit, deduction or return has been authorized or is in process with respect to the Account in an amount not to exceed $250,000 in the aggregate, except discounts or allowances granted in the ordinary course of business for prompt payment that are reflected on the face of the invoice related thereto and in the reports submitted to the Administrative Agent hereunder; and
(h) to the knowledge Borrowers’ knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectability of such Account in an amount not to exceed $250,000 in the Borrower, aggregate in any material respect; (ii) the Account Debtor under the Account had the capacity to contract at the time any contract or other document giving rise to when the Account was executed;
(vii) with arose, continues to meet the exceptions of Accounts described in Section 2(a)(ii)applicable Borrower’s customary credit standards, the Account has been billed is Solvent, is not contemplating or subject to an Insolvency Proceeding, and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not madefailed, or suspended or ceased doing business; and will not make without concurrent written notice provided to Lender, any agreement with (iii) there are no proceedings or actions threatened or pending against any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except that could reasonably be expected to have a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating to such Account that has been delivered to Lender is true and correct in all material respects, such that with respect to each such Account that has been invoiced, Borrower has delivered or is delivering to adverse effect on the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,Debtor’s financial condition.
Appears in 1 contract
Samples: Credit Agreement (Cdi Corp)
Eligible Accounts. With respect to each Account, as The Eligible Accounts are bona fide existing payment obligations of Account Debtors created by the date such Account is created sale and included as an Eligible Account:
(i) all documents and agreements relating to delivery of Inventory or the Account requested by Lender have been delivered to Lender with respect rendition of services to such Account and such documents are true and correct in all material respects;
(ii) the Account is genuine and in all respects what it purports to be and is not evidenced by a judgment;
(iii) the Account is for a liquidated amount maturing as stated in a duplicate claim or invoice covering such sale or rendition of Staffing Services;
(iv) the Account is not subject to any offset, Lien (other than a Lien of Lender or a Permitted Lien), recoupment, deduction, defense, dispute, counterclaim or any other adverse condition or adjustment of any kind (in each case other that any such item that is taken into account in determining the net amount of such Account) that is known to Borrower as existing or asserted, and each such Account is absolutely owing to Borrower and is not contingent in any respect or for any reason;
(v) there are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the claim or invoice and statements delivered to Lender with respect thereto other than adjustments made by Borrower Debtors in the ordinary course of Borrowers' business;, owed to Borrowers without defenses, disputes, offsets, counterclaims, or rights of return or cancellation. As to each Eligible Account, such Account is not:
(via) owed by an employee, Affiliate, or agent of a Borrower,
(b) on account of a transaction wherein goods were placed on consignment or were sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or on any other terms by reason of which the knowledge of the Borrower, payment by the Account Debtor under may be conditional,
(c) other than permitted foreign Eligible Accounts, payable in a currency other than Dollars,
(d) owed by an Account Debtor that has or has asserted a right of setoff, has disputed its liability, or has made any claim with respect to its obligation to pay the Account,
(e) owed by an Account had Debtor that is subject to any Insolvency Proceeding or is not Solvent or as to which a Borrower has received notice of an imminent Insolvency Proceeding or a material impairment of the capacity financial condition of such Account Debtor,
(f) on account of a transaction as to contract at which the time any contract or other document goods giving rise to the such Account was executed;
(vii) with the exceptions of Accounts described in Section 2(a)(ii), the Account has have not been shipped and billed and forwarded to the Account Debtor for payment in accordance with applicable laws and compliance and conformance in all material respects with any and requisite procedures, requirements and regulations governing payment by such Account Debtor with respect to such Account;
(viii) Borrower has obtained and currently has all licenses, permits and authorizations that are necessary in or the generation of such Accounts;
(ix) Lender has a perfected, first-priority security interest in such Account to secure the Obligations;
(x) the aging of such Eligible Account, as reflected in the information submitted to Lender, reflects the age of such Eligible Account from the date of service and not from the date of billing or any re-billing of the Eligible Account;
(xi) Borrower has not made, and will not make without concurrent written notice provided to Lender, any agreement with any Account Debtor for any extension of the time for payment of the Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by Borrower in the ordinary course of its business consistent with its historical practices and as disclosed to Lender in writing;
(xii) all information relating services giving rise to such Account have not been performed and accepted by the Account Debtor,
(g) a right to receive progress payments or other advance xxxxxxxx that has been delivered are due prior to Lender is true and correct in all material respectsthe completion of performance by the applicable Borrower of the subject contract for goods or services, such that with respect to each such and
(h) an Account that has not been invoiced, Borrower has delivered or is delivering billed to the Account Debtor all requested supporting claim documents and all information set forth in the invoice and supporting claim documents is true, complete and correct in all material respects;
(xiii) such Account is (i) payable in the amount identified by Borrower; or,customer.
Appears in 1 contract
