Eligible Inventory For purposes of this Agreement, Eligible Inventory shall exclude any Inventory to which any of the exclusionary criteria set forth below applies. The Administrative Agent shall have the right to establish, modify or eliminate Reserves against Eligible Inventory from time to time in its reasonable credit judgment. In addition, the Administrative Agent reserves the right, at any time and from time to time after the Original Closing Date, to adjust any of the criteria set forth below, to establish new criteria and to adjust the applicable advance rate with respect to Eligible Inventory, in its reasonable credit judgment, subject to the approval of the Supermajority Lenders in the case of adjustments, new criteria, changes in the applicable advance rate or the elimination of Reserves which have the effect of making more credit available. Eligible Inventory shall not include any Inventory of Borrower or any Borrowing Base Guarantor that:
(i) the Collateral Agent, on behalf of Secured Parties, does not have a first priority and exclusive perfected Lien on such Inventory;
(ii) is not located on premises in United States or Canada;
(iii) (A) is located on premises leased by Borrower or a Borrowing Base Guarantor, unless (x) at such location the aggregate value of Inventory exceeds $250,000, and (y) either (1) a reasonably satisfactory Landlord Lien Waiver and Access Agreement has been delivered to the Collateral Agent, or (2) Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto or (B) is stored with a bailee or warehouseman where the aggregate value of Inventory exceeds $250,000 unless either (x) a reasonably satisfactory, acknowledged bailee waiver letter has been received by the Collateral Agent or (y) Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto, or (C) is located at an owned location subject to a mortgage in favor of a lender other than the Collateral Agent where the aggregate value of Inventory exceeds $250,000 unless either (x) a reasonably satisfactory mortgagee waiver has been delivered to the Collateral Agent or (y) Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto;
(iv) is placed on consignment (other than Eligible Consigned Inventory);
(v) is covered by a negotiable document of title, unless such document has been delivered to the Collateral Agent with all necessary endorsements, free and clear of all Liens except those in favor of the Collateral Agent and the Lenders and landlords, carriers, bailees and warehousemen if clause (iii) above has been complied with;
(vi) is to be returned to suppliers;
(vii) is obsolete, unsalable, shopworn, seconds, damaged or unfit for sale;
(viii) is slow moving (in excess of 1-year supply);
(ix) consists of display items, samples or packing or shipping materials, manufacturing supplies or replacement parts (it being understood that Eligible Inventory shall not exclude work-in-process Inventory if it is not excluded in accordance with other criteria set forth herein, unless otherwise determined by the Administrative Agent in its reasonable credit judgment);
(x) is not of a type held for sale in the ordinary course of Borrower’s or any Borrowing Base Guarantor’s, as applicable, business;
(xi) breaches any of the representations or warranties pertaining to Inventory set forth in the Loan Documents;
(xii) consists of Hazardous Material or goods that can be transported or sold only with licenses that are not readily available;
(xiii) is not covered by casualty insurance maintained as required by Section 5.04;
(xiv) consists of custom made Inventory which is not saleable to any other customer or in ordinary course;
(xv) is in transit; or
(xvi) is subject to any licensing arrangement the effect of which would be to limit the ability of Collateral Agent, or any Person selling the Inventory on behalf of Collateral Agent, to sell such Inventory in enforcement of the Collateral Agent’s Liens, without further consent or payment to the licensor or other.
Product Availability Under no circumstances shall Company be responsible to Representative or anyone else for its failure to fill accepted orders, or for its delay in filling accepted orders, when such failure or delay is due to strike, accident, labor trouble, acts of nature, freight embargo, war, civil disturbance, vendor problems or any cause beyond Company's reasonable control.
Location of Equipment and Inventory All Equipment and Inventory are (i) located at the locations indicated on Schedule 4 (ii) in transit to such locations or (iii) in transit to a third party purchaser which will become obligated on a Receivable to the Debtor upon receipt. Except for Equipment and Inventory referred to in clauses (ii) and (iii) of the preceding sentence, the Debtor has exclusive possession and control of the Inventory and Equipment.
CURRENT INVENTORY OF QUALIFIED PROPERTY In addition to the requirements of Section 10.2 of this Agreement, if there is a material change in the Qualified Property described in EXHIBIT 4, then within 60 days from the date commercial operation begins, the Applicant shall provide to the District, the Comptroller, the Appraisal District or the State Auditor’s Office a specific and detailed description of the tangible personal property, buildings, and/or permanent, nonremovable building components (including any affixed to or incorporated into real property) on the Land to which the value limitation applies including maps or surveys of sufficient detail and description to locate all such described property on the Land.
Annual Collateral Verification Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), Company shall deliver to Collateral Agent a certificate of an Authorized Officer either (i) confirming that there has been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section 5.1(o) or (ii) identifying such changes;
Minimum Consolidated EBITDA The Borrower will not permit Modified Consolidated EBITDA, for any Test Period ending at the end of any fiscal quarter of the Borrower set forth below, to be less than the amount set forth opposite such fiscal quarter: Fiscal Quarter Amount September 30, 1997 $36,000,000 December 31, 1997 $36,000,000 March 31, 1998 $36,000,000 June 30, 1998 $37,000,000 September 30, 1998 $37,000,000 December 31, 1998 $38,000,000 March 31, 1999 $38,000,000 June 30, 1999 $39,000,000 September 30, 1999 $40,000,000 December 31, 1999 $41,000,000 March 31, 2000 $41,000,000 June 30, 2000 $42,000,000 September 30, 2000 $43,000,000 December 31, 2000 $44,000,000 March 31, 2001 $44,000,000 June 30, 2001 $45,000,000 September 30, 2001 $46,000,000 December 31, 2001 $47,000,000 March 31, 2002 $47,000,000
As to Equipment and Inventory Grantor hereby agrees that it shall:
(a) keep all the Equipment and Inventory (other than Inventory in transit and Inventory sold in the ordinary course of business) at the places therefor specified in Section 3.1.1 or, upon 30 days' prior written notice to Agent, at such other places in a jurisdiction where all representations and warranties set forth in Article III (including Section 3.1.6) shall be true and correct, and all action required pursuant to the first sentence of Section 4.1.7 shall have been taken with respect to the Equipment and Inventory;
(b) with respect to any Equipment or Inventory in the possession or control of any Third Party or any of Grantor's agents, notify such Third Party or agent of Agent's security interest in such Equipment or Inventory and, upon Agent's request following the occurrence and during the continuance of an Event of Default, direct such Third Party or agent to hold all such Equipment or Inventory for Agent's account and subject to Agent's instructions;
(c) cause the Equipment to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manual; and forthwith, or in the case of any material loss or damage to any of the Equipment, as quickly as practicable after the occurrence thereof, make or cause to be made all repairs, replacements, and other improvements in connection therewith which are necessary or desirable to such end; and promptly furnish to Agent a statement respecting any loss or damage to any of the Equipment within ten (10) business days after Grantor obtains knowledge of any such loss or damage; and
(d) pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Equipment and Inventory, except to the extent the validity thereof is being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with Generally Accepted Accounting Principles have been set aside.
Quarterly Contractor Performance Reporting Customers shall complete a Contractor Performance Survey (Exhibit I) for each Contractor on a Quarterly basis. Customers will electronically submit the completed Contractor Performance Survey(s) to the Department Contract Manager no later than the due date indicated in Contract Exhibit D, Section 17, Additional Special Contract Conditions. The completed Contractor Performance Survey(s) will be used by the Department as a performance-reporting tool to measure the performance of Contractors. The Department reserves the right to modify the Contractor Performance Survey document and introduce additional performance-reporting tools as they are developed, including online tools (e.g. tools within MyFloridaMarketPlace or on the Department's website).
Minimum Consolidated Net Worth The Borrower will not permit its Consolidated Net Worth at any time to be less than the sum of (i) $250,000,000 plus (ii) thirty percent (30%) of the sum of the Consolidated Net Income of the Borrower (with any consolidated net loss during any fiscal quarter counting as zero) for each fiscal quarter of the Borrower commencing with the fiscal quarter of the Borrower ending June 30, 1997.
SIGNIFICANT LANDS INVENTORY FINDING Find that this activity is consistent with the use classification designated by the Commission for the land pursuant to Public Resources Code section 6370 et seq.
