Common use of Trigger Payments Clause in Contracts

Trigger Payments. (a) Within 15 days after the end of each Measurement Period (or 15 days after the date that the last item of Backlog (as such term is defined in the U.S. Direct Operating Agreement) is Financed by GE Capital pursuant to the U.S. Direct Operating Agreement), GE Capital shall deliver to Danka a notice setting forth (i) the Actual Volume, Adjusted Target Volume, Approval Rate and, if applicable, the amount of any Carry Forward Volume Credit, in each case, for such Measurement Period and (ii) the calculations provided below setting forth either (A) the amount of any cash payment required to be made by Danka to GE Capital pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment") or (B) the amount of any return of a Trigger Payment or portion thereof required to be paid by GE Capital to Danka pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment Return"). All such information and calculations (and the information required to be provided to Danka pursuant to Section 8.2(d)) shall be certified by the Manager of Finance of GE Capital VFS's Center for Specialized Alliances (in his capacity as such) as being true and correct in all material respects, to the best of his knowledge, after due inquiry. Within 15 days after the end of each calendar quarter in a Measurement Period (other than a calendar quarter that is the end of such Measurement Period), GE Capital shall deliver to Danka its good faith estimate of the Volume funded by GE Capital or its Program Affiliates during such Measurement Period through the end of such calendar quarter, the Approval Rate, the aggregate amount proposed to be Financed by GE Capital or any Program Affiliate in connection with all of the Prospective Financings submitted by Danka or any of its Affiliates to GE Capital or any Program Affiliate in connection with the Qualifying Programs and the Funding Rate, in each case in respect of the period beginning on the first day of such Measurement Period and ending on the last day of such calendar quarter. (b) If this Agreement is terminated and such termination results in an Interrupted Measurement Period, then any Trigger Payment or Trigger Payment Return due in respect of such Interrupted Measurement Period shall be calculated, as applicable, in accordance with subsection (c) or (d) hereof without giving effect to the fact that such Measurement Period is an Interrupted Measurement Period; provided that the Target Volume for such Interrupted Measurement Period shall be calculated on a pro rated basis calculated based on the actual number of days (365 or 366) in the Measurement Period during which such termination occurs. By way of example, if the Target Volume was $250 million for the Measurement Period during which the termination occurred, such Measurement Period consisted of 365 days and the Agreement was terminated on the 100th day of such Measurement Period, the Target Volume for such Interrupted Measurement Period would be equal to (i) 100 multiplied by the quotient of $250 million divided by 365 or (ii) $68,493,151. (c) Subject to the terms of subsection (d) hereof, if the amount of the Actual Volume plus any applicable Carry Forward Volume Credit for any Measurement Period (the "Aggregate Volume") is less than the Adjusted Target Volume for such Measurement Period (a "Volume Shortfall"), then the Trigger Payment due to GE Capital for such Measurement Period shall be an amount equal to the product of (i) the excess of the Adjusted Target Volume over the Aggregate Volume, in each case, calculated for such Measurement Period multiplied by (ii) 4.75%. (d) If in any Measurement Period, the Actual Volume for such Measurement Period exceeds the Adjusted Target Volume for such Measurement Period (an "Excess Volume Measurement Period") and if in the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period (the "Look Back Measurement Period") there was a Volume Shortfall, then within 15 days after the end of such Excess Volume Measurement Period, GE Capital shall deliver to Danka a notice setting forth the amount of any Carry Back Volume Credit applicable to such Look Back Measurement Period. In respect of any Look Back Measurement Period to which there is applicable a Carry Back Volume Credit, GE Capital shall pay to Danka a Trigger Payment Return in an amount equal to the lesser of (i) the Trigger Payment previously received by GE Capital from Danka in respect of such Look Back Measurement Period and (ii) the product of 4.75% multiplied by an amount equal to the Carry Back Volume Credit for such Look Back Measurement Period. (e) With respect to any Excess Volume Measurement Period, the excess of the Actual Volume for such Measurement Period over the Adjusted Target Volume for such Measurement Period can qualify as either a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period or a Carry Back Volume Credit in respect of the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period, but to the extent a portion of such excess is applied as Carry Back Volume Credit in the calculation of any Trigger Payment Return due in respect of the immediately prior Measurement Period, then only the unapplied amount of such excess can qualify, subject to the other terms of this Agreement, as a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period. The excess of the Actual Volume in any Measurement Period over the Adjusted Target Volume for such Measurement Period shall first be applied as a Carry Back Volume Credit to any Volume Shortfall that occurred in the immediately preceding Measurement Period. (f) Danka or GE Capital (as the case may be) shall pay to the other the amount of any Trigger Payment or Trigger Payment Return no later than 30 days after delivery by GE Capital of the related notice under Section 8.

Trigger Payments. (a) Within 15 days after Danka shall have reported to GE Capital the end of annual United States Reprographic Hardware Sales with respect to each Measurement Period (or 15 days after the date that the last item of Backlog (as such term is defined in the U.S. Direct Operating Agreement) is Financed by GE Capital pursuant to the U.S. Direct Operating AgreementAgreement ), GE Capital shall deliver to Danka a notice setting forth (i) the Actual Volume, Adjusted Target Volume, Volume and Approval Rate and, if applicable, the amount of any Carry Forward Volume CreditRate, in each case, for such Measurement Period and (ii) the calculations provided below setting forth either (A) the amount of any cash payment required to be made by Danka to GE Capital pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment") or (B) the amount of any return of a Trigger Payment or portion thereof required to be paid by GE Capital to Danka pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment Return"). All such information and calculations (and the information required to be provided to Danka pursuant to Section 8.2(d)) shall be certified by the Manager of Finance of GE Capital VFS's Center for Specialized Alliances (in his capacity as such) as being true and correct in all material respects, to the best of his knowledge, after due inquiry. Within 15 days after the end of each calendar quarter in a Measurement Period (other than a calendar quarter that is the end of such Measurement Period), GE Capital shall deliver to Danka its good faith estimate of the Volume funded by GE Capital or its Program Affiliates during such Measurement Period through the end of such calendar quarter, the Approval Rate, the aggregate amount proposed to be Financed by GE Capital or any Program Affiliate in connection with all of the Prospective Financings submitted by Danka or any of its Affiliates to GE Capital or any Program Affiliate in connection with the Qualifying Programs and the Funding Rate, in each case in respect of the period beginning on the first day of such Measurement Period and ending on the last day of such calendar quarter. (b) If this Agreement is terminated and such termination results in an Interrupted Measurement Period, then any Trigger Payment or Trigger Payment Return due in respect of such Interrupted Measurement Period shall be calculated, as applicable, calculated in accordance with subsection (c) or (d) hereof without giving effect to the fact that such Measurement Period is an Interrupted Measurement Period; provided that the Target Volume for such Interrupted Measurement Period shall be calculated on a pro rated basis calculated based on the actual number of days (365 or 366) in the Measurement Period during which such termination occurs. By way of example, if the Target Volume was $250 170 million for the Measurement Period during which the termination occurred, such Measurement Period consisted of 365 days and the Agreement was terminated on the 100th day of such Measurement Period, the Target Volume for such Interrupted Measurement Period would be equal to (i) 100 multiplied by the quotient of $250 170 million divided by 365 or (ii) $68,493,15146,575,342. (c) Subject to the terms of subsection (d) hereof, if If the amount of the Actual Volume plus any applicable Carry Forward Volume Credit for any Measurement Period (the "Aggregate Volume") is less than the Adjusted Target Volume for such Measurement Period (a "Volume Shortfall"), then the Trigger Payment due to GE Capital for such Measurement Period shall be an amount equal to the product of (i) the excess of the Adjusted Target Volume over the Aggregate Actual Volume, in each case, calculated for such Measurement Period multiplied by (ii) 4.75%. (d) If in any Measurement Period, the Actual Volume for such Measurement Period exceeds the Adjusted Target Volume for such Measurement Period (an "Excess Volume Measurement Period") and if in the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period (the "Look Back Measurement Period") there was a Volume Shortfall, then within 15 days after the end of such Excess Volume Measurement Period, GE Capital shall deliver to Danka a notice setting forth the amount of any Carry Back Volume Credit applicable to such Look Back Measurement Period. In respect of any Look Back Measurement Period to which there is applicable a Carry Back Volume Credit, GE Capital shall pay to Danka a Trigger Payment Return in an amount equal to the lesser of (i) the Trigger Payment previously received by GE Capital from Danka in respect of such Look Back Measurement Period and (ii) the product of 4.75% multiplied by an amount equal to the Carry Back Volume Credit for such Look Back Measurement Period. (e) With respect to any Excess Volume Measurement Period, the excess of the Actual Volume for such Measurement Period over the Adjusted Target Volume for such Measurement Period can qualify as either a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period or a Carry Back Volume Credit in respect of the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period, but to the extent a portion of such excess is applied as Carry Back Volume Credit in the calculation of any Trigger Payment Return due in respect of the immediately prior Measurement Period, then only the unapplied amount of such excess can qualify, subject to the other terms of this Agreement, as a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period. The excess of the Actual Volume in any Measurement Period over the Adjusted Target Volume for such Measurement Period shall first be applied as a Carry Back Volume Credit to any Volume Shortfall that occurred in the immediately preceding Measurement Period. (f) Danka or GE Capital (as the case may be) shall pay to the other the amount of any Trigger Payment or Trigger Payment Return no later than 30 15 days after delivery by GE Capital of the related notice under Section 88.2(a). (e) Any amounts funded by GE Capital or any Program Affiliate in respect of Backlog (as such term is defined in the U.S. Direct Operating Agreement) shall be included for purposes of determining any Trigger Payment and Termination Fee due pursuant to the terms of this Agreement.

Trigger Payments. (a) Within 15 days after Danka shall have reported to GE Capital the end of annual United States Reprographic Hardware Sales with respect to each Measurement Period (or 15 days after the date that the last item of Backlog (as such term is defined in the U.S. Direct Operating Agreement) is Financed by GE Capital pursuant to the U.S. Direct Operating Agreement), GE Capital shall deliver to Danka a notice setting forth (i) the Actual Volume, Adjusted Target Volume, Volume and Approval Rate and, if applicable, the amount of any Carry Forward Volume CreditRate, in each case, for such Measurement Period and (ii) the calculations provided below setting forth either (A) the amount of any cash payment required to be made by Danka to GE Capital pursuant to this Section 8.2 with respect to such Measurement Period (a "“Trigger Payment") or (B) the amount of any return of a Trigger Payment or portion thereof required to be paid by GE Capital to Danka pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment Return"”). All such information and calculations (and the information required to be provided to Danka pursuant to Section 8.2(d)) shall be certified by the Manager of Finance of Express Financial Solutions of GE Capital VFS's Center for Specialized Alliances Capital’s Vendor Financial Services division (in his such individual’s representative capacity as suchsuch and not individually) as being true and correct in all material respects, to the best of his knowledge, after due inquiry. Within 15 days after the end of each calendar quarter in a Measurement Period (other than a calendar quarter that is the end of such Measurement Period), GE Capital shall deliver to Danka its good faith estimate of the Volume funded by GE Capital or its Program Affiliates during such Measurement Period through the end of such calendar quarter, the Approval Rate, the aggregate amount amout proposed to be Financed by GE Capital or any Program Affiliate in connection with all of the Prospective Financings submitted by Danka or any of its Affiliates to GE Capital or any Program Affiliate in connection with the Qualifying Programs and the Funding Rate, in each case in respect of the period beginning on the first day of such Measurement Period and ending on the last day of such calendar quarter. (b) If this Agreement is terminated and such termination results in an Interrupted Measurement Period, then any Trigger Payment or Trigger Payment Return due in respect of such Interrupted Measurement Period shall be calculated, as applicable, calculated in accordance with subsection (c) or (d) hereof without giving effect to the fact that such Measurement Period is an Interrupted Measurement Period; provided that the Target Volume for such Interrupted Measurement Period shall be calculated on a pro rated basis calculated based on the actual number of days (365 or 366) in the Measurement Period during which such termination occurs. By way of example, if the Target Volume was $250 170 million for the Measurement Period (calculated as 75% of an amount equal to the United States Reprographic Hardware Sales less Cash Sales and Excluded Transactions) during which the termination occurred, such Measurement Period consisted of 365 days and the Agreement was terminated on effective as of the 100th day of such Measurement Period, the Target Volume for such Interrupted Measurement Period would be equal to (i) 100 multiplied by the quotient of $250 170 million divided by 365 or (ii) $68,493,15146,575,342. (c) Subject to the terms of subsection (d) hereof, if If the amount of the Actual Volume plus any applicable Carry Forward Volume Credit for any Measurement Period (the "Aggregate Volume") is less than the Adjusted Target Volume for such Measurement Period (a "“Volume Shortfall"”), then the Trigger Payment due to GE Capital for such Measurement Period shall be an amount equal to the product of (i) the excess of the Adjusted Target Volume over the Aggregate Actual Volume, in each case, calculated for such Measurement Period multiplied by (ii) 4.75%. (d) If in any Measurement Period, the Actual Volume for such Measurement Period exceeds the Adjusted Target Volume for such Measurement Period (an "Excess Volume Measurement Period") and if in the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period (the "Look Back Measurement Period") there was a Volume Shortfall, then within 15 days after the end of such Excess Volume Measurement Period, GE Capital shall deliver to Danka a notice setting forth the amount of any Carry Back Volume Credit applicable to such Look Back Measurement Period. In respect of any Look Back Measurement Period to which there is applicable a Carry Back Volume Credit, GE Capital shall pay to Danka a Trigger Payment Return in an amount equal to the lesser of (i) the Trigger Payment previously received by GE Capital from Danka in respect of such Look Back Measurement Period and (ii) the product of 4.75% multiplied by an amount equal to the Carry Back Volume Credit for such Look Back Measurement Period. (e) With respect to any Excess Volume Measurement Period, the excess of the Actual Volume for such Measurement Period over the Adjusted Target Volume for such Measurement Period can qualify as either a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period or a Carry Back Volume Credit in respect of the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period, but to the extent a portion of such excess is applied as Carry Back Volume Credit in the calculation of any Trigger Payment Return due in respect of the immediately prior Measurement Period, then only the unapplied amount of such excess can qualify, subject to the other terms of this Agreement, as a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period. The excess of the Actual Volume in any Measurement Period over the Adjusted Target Volume for such Measurement Period shall first be applied as a Carry Back Volume Credit to any Volume Shortfall that occurred in the immediately preceding Measurement Period. (f) Danka or GE Capital (as the case may be) shall pay to the other the amount of any Trigger Payment or Trigger Payment Return no later than 30 15 days after delivery by GE Capital of the related notice under Section 88.2(a). Notwithstanding the foregoing, in the event a Trigger Payment shall be due to GE Capital from Danka with respect to the (i) Specified Measurement Period, GE Capital shall waive the obligation of Danka to pay the amount of any such Trigger Payment and (ii) Stub Measurement Period, Danka shall pay to GE Capital the amount of any such Trigger Payment no later than 4/1/04 (e) Any amounts funded by GE Capital or any Program Affiliate in respect of Backlog (as such term is defined in the U.S. Direct Operating Agreement) shall be included for purposes of determining any Trigger Payment and Termination Fee due pursuant to the terms of this Agreement.”

Trigger Payments. (a) Within 15 days after Danka shall have reported to GE Capital the end of annual United States Reprographic Hardware Sales with respect to each Measurement Period (or 15 days after the date that the last item of Backlog (as such term is defined in the U.S. Direct Operating Agreement) is Financed by GE Capital pursuant to the U.S. Direct Operating Agreement), GE Capital shall deliver to Danka a notice setting forth (i) the Actual Volume, Adjusted Target Volume, Volume and Approval Rate and, if applicable, the amount of any Carry Forward Volume CreditRate, in each case, for such Measurement Period and (ii) the calculations provided below setting forth either (A) the amount of any cash payment required to be made by Danka to GE Capital pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment"). A11 such information and --------------- calculations shall be certified by the Manager of Finance of GE Capital VFS's Center for Specialized Alliances (in his capacity as such) as being true and correct in all material respects, to the best of his knowledge, after due inquiry. With respect to the for the Measurement Period of 4/l/02 through 1l/30/02, within 10 calendar days after Danka shall have reported to GE Capital the applicable United States Reprographic Hardware Sales with respect to such Measurement Period (or 10 calendar days after the date that the last item of Backlog (Bas such term is defined in the U.S. Direct Operating Agreement) is Financed by GE Capital pursuant to the U.S. Direct Operating Agreement), GE Capital shall deliver to Danka a notice setting forth (i) the Actual Volume, Adjusted Target Volume and Approval Rate, in each case, for such Measurement Period and (ii) the calculations provided below setting forth the amount of any return of a Trigger Payment or portion thereof cash payment required to be paid made by Danka to GE Capital to Danka pursuant to this Section 8.2 with respect to such Measurement Period (a "Trigger Payment ReturnPayment"). All such --------------- information and calculations (and the information required to be provided to Danka pursuant to Section 8.2(d)) shall be certified by the Manager of Finance of GE Capital VFS's Center for Specialized Alliances (in his capacity as such) as being true and correct in all material respects, to the best of his knowledge, after due inquiry. Within 15 days after the end of each calendar quarter in a Measurement Period (other than a calendar quarter that is the end of such Measurement Period), GE Capital shall deliver to Danka its good faith estimate of the Volume funded by GE Capital or its Program Affiliates during such Measurement Period through the end of such calendar quarter, the Approval Rate, the aggregate amount proposed to be Financed by GE Capital or any Program Affiliate in connection with all of the Prospective Financings submitted by Danka or any of its Affiliates to GE Capital or any Program Affiliate in connection with the Qualifying Programs and the Funding Rate, in each case in respect of the period beginning on the first day of such Measurement Period and ending on the last day of such calendar quarter. (b) If this Agreement is terminated and such termination results in an Interrupted Measurement Period, then any Trigger Payment or Trigger Payment Return due in respect of such Interrupted Measurement Period shall be calculated, as applicable, calculated in accordance with subsection (c) or (d) hereof without giving effect to the fact that such Measurement Period is an Interrupted Measurement Period; provided that the Target Volume for such Interrupted Measurement Period shall be calculated on a pro rated basis calculated based on the actual number of days (365 or 366) in the Measurement Period during which such termination occurs. By way of example, if the Target Volume was $250 170 million for the Measurement Period during which the termination occurred, such Measurement Period consisted of 365 days and the Agreement was terminated on the 100th day of such Measurement Period, the Target Volume for such Interrupted Measurement Period would be equal to (i) 100 multiplied by the quotient of $250 170 million divided by ---------- -- ------- -- 365 or (ii) $68,493,15146,575,342. (c) Subject to the terms of subsection (d) hereof, if If the amount of the Actual Volume plus any applicable Carry Forward Volume Credit for any Measurement Period (the "Aggregate Volume") is less than the Adjusted Target Volume for such Measurement Period (a "Volume Shortfall"), then the Trigger Payment due ---------------- to GE Capital for such Measurement Period shall be an amount equal to the product of (i) the excess of the Adjusted Target Volume over the Aggregate Actual Volume, in each case, calculated for such Measurement Period multiplied ---------- by (ii) 4.75%.. -- (d) If in any Measurement Period, the Actual Volume for such Measurement Period exceeds the Adjusted Target Volume for such Measurement Period (an "Excess Volume Measurement Period") and if in the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period (the "Look Back Measurement Period") there was a Volume Shortfall, then within 15 days after the end of such Excess Volume Measurement Period, GE Capital shall deliver to Danka a notice setting forth the amount of any Carry Back Volume Credit applicable to such Look Back Measurement Period. In respect of any Look Back Measurement Period to which there is applicable a Carry Back Volume Credit, GE Capital shall pay to Danka a Trigger Payment Return in an amount equal to the lesser of (i) the Trigger Payment previously received by GE Capital from Danka in respect of such Look Back Measurement Period and (ii) the product of 4.75% multiplied by an amount equal to the Carry Back Volume Credit for such Look Back Measurement Period. (e) With respect to any Excess Volume Measurement Period, the excess of the Actual Volume for such Measurement Period over the Adjusted Target Volume for such Measurement Period can qualify as either a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period or a Carry Back Volume Credit in respect of the Measurement Period that occurred immediately prior to such Excess Volume Measurement Period, but to the extent a portion of such excess is applied as Carry Back Volume Credit in the calculation of any Trigger Payment Return due in respect of the immediately prior Measurement Period, then only the unapplied amount of such excess can qualify, subject to the other terms of this Agreement, as a Carry Forward Volume Credit in respect of the next Measurement Period to occur after such Excess Volume Measurement Period. The excess of the Actual Volume in any Measurement Period over the Adjusted Target Volume for such Measurement Period shall first be applied as a Carry Back Volume Credit to any Volume Shortfall that occurred in the immediately preceding Measurement Period. (f) Danka or GE Capital (as the case may be) shall pay to the other the amount of any Trigger Payment or Trigger Payment Return no later than 30 15 days after delivery by GE Capital of the related notice under Section 88.2(a). Notwithstanding the foregoing, in the event a Trigger Payment shall be due GE Capital from Danka with respect to the Measurement Period of 4/1/02 through 11/30/02, Danka shall pay to GE Capital the amount of any such Trigger Payment no later than 5 calendar days after delivery by GE Capital of the related notice under Section 8.2(a). (e) Any amounts funded by GE Capital or any Program Affiliate in respect of Backlog (as such term is defined in the U.S. Direct Operating Agreement) shall be included for purposes of determining any Trigger Payment and Termination Fee due pursuant to the terms of this Agreement. The following definitions contained in Appendix I to the Global Operating Agreement are hereby amended as follows: (a) The definition of "Measurement Period" is hereby amended and restated to read in its entirety as follows: