Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 6 contracts
Samples: Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (MN8 Energy, Inc.)
Borrowing Base Certificate. Within ten (10i) days On the Closing Date, the Initial Borrowing Base Certificate, (ii) within two weeks of delivery of the Initial Borrowing Base Certificate, a certificate updating the Initial Borrowing Base Certificate using the same methodology used to prepare the Initial Borrowing Base Certificate, and (iii) thereafter (A) from and after the Interim Borrowing Order Entry Date, by 9.00 a.m. (New York City time) on the following Thursday after the last Business Day of every second calendar week, commencing on October 30, 2009 (or more frequently as the Administrative Agent may reasonably request (and during the continuance of an Event of Default, as frequently as the Administrative Agent may request) or as the Borrower may elect), (B) at any time when the Aggregate Exposure exceeds $5,000,000, by 9.00 a.m. (New York City time) on the following Thursday after the last Business Day of every week thereafter (or more frequently as the Administrative Agent may reasonably request (and during the continuance of an Event of Default, as frequently as the Administrative Agent may request) or as the Borrower may elect), (C) no later than the fifteenth day after the end of each calendar monthfiscal month and (D) after the date on which any Collateral included in the Borrowing Base with a value in excess of $2,500,000 is sold or disposed of in any non-ordinary course of business sale or disposition to any Person other than a Loan Party, in each case a certificate substantially in the Borrowers shall deliver form of Exhibit J setting forth the Borrowing Base (with supporting calculations) in form and substance reasonably satisfactory to the Administrative Agent, appropriately completed (with such modifications as to format and presentation as may be reasonably requested by the Administrative Agent an updated Borrowing Base Certificate upon five (5) Business Days’ notice) together with all attachments and supporting documentation as contemplated thereby and certified as true, correct and complete in all material respects by a Responsible Officer of each the Borrower (each, a “Bring Down Borrowing Base Certificate”). The Borrowing Base Certificates shall be prepared (1) as of August 31, 2009, in the case of the Initial Borrowing Base Certificate, (2) in the case of the certificate to be true and correct (i) setting forth a calculation delivered within two weeks of the Available Commitment Initial Borrowing Base Certificate, as of such date September 30, 3009, (3) in the case of deliverythe Bring Down Borrowing Base Certificate to be delivered every two weeks or every week, andas of the last Business Day of the preceding week (or, if in the case of any voluntary delivery of a Bring Down Borrowing Base Certificate at the election of the Administrative Agent, a subsequent date), (4) in the case of the Bring Down Borrowing Base Certificate to be delivered monthly, as of the last Business Day of the preceding month, and (5) in the case of any Bring Down Borrowing Base Certificate to be delivered after any non-ordinary course of business sale or disposal of Collateral included in the Borrowing BaseBase in excess of $2,500,000, certifying as of the aggregate Recallable Capital included last Business Day of the preceding week prior to the week in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor which such sale or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that disposal is completed. Each such Borrowing Base Certificate will shall include such other supporting information as may be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached reasonably requested from time to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to time by the Administrative Agent along including information concerning the amount, composition and manner of calculation of the Borrowing Base. Notwithstanding the foregoing, if, with a summary of such Investor Capital Calls and calculated after giving effect respect to any month end Borrowing Base Certificate delivery requirement set forth in clause (C) above, the related Investor Capital Contributions requested by such Investor Capital Calls); Borrower previously delivered (iiior is scheduled to deliver) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency before or cause all Exclusion Events for after such month end pursuant to equal 1% or more another provision of aggregate Investor Capital Commitments (in which casethis Section 5.03(m), the Borrower shall not have to deliver such updated monthly Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madeunder clause (C) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentabove.
Appears in 4 contracts
Samples: Restructuring Support Agreement (Accuride Corp), Senior Secured Debtor in Possession Credit Agreement (Accuride Corp), Restructuring Support Agreement (Accuride Corp)
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, ’s Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 13% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such of any Exclusion Event will result in occurring with respect to (x) any Included Investor (other than a Borrowing Base deficiency PWM Investor) or cause all Exclusion Events for such month to equal 1% (y) one or more PWM Investors with Investor Capital Commitments that, in the aggregate, represent more than 3% of the aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II)
Borrowing Base Certificate. Within ten Borrowers shall calculate Borrowing Base and Availability and deliver to Administrative Agent (10and Administrative Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate (a) no later than five (5) days of following the end last day of each calendar month, month during the Borrowers shall deliver to the Administrative Agent an updated term hereof (a “Payment Date Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation Certificate”), showing valuations as of the Available Commitment as close of such date business of deliverythe last day of the calendar month just ended, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (iib) within three (3) Business Days of any event or circumstance in which an Approved Financing has become a Zero Value Approved Financing, showing valuations as of the issuance of Investor Capital Calls to Investors date such Approved Financing became a Zero Value Approved Financing, (delivered to the c) within three (3) Business Days following any other demand by Administrative Agent along with a summary (which may be requested up to one (1) time per week), showing valuations as of such Investor Capital Calls and calculated after giving effect the date of demand, (d) on the date on which any Notice of Borrowing is delivered or as otherwise required pursuant to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sSection 4.1.1, Investor Capital Commitment (other than in the case showing valuations as of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or date not more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following earlier than the occurrence actual date of Advance, (ae) within three (3) Business Days after any Exclusion Event and a Responsible Officer Removal Date, or (f) upon Borrowers’ request for an Additional Collateral Event, showing valuations as of a Credit Party obtaining date not more than five (5) Business Days prior to the actual knowledge thereof so long as inclusion of such Exclusion Event will result Approved Financing in a the Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Base. Each Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and include a updated Borrowing Base Certificate provided) within ten (10) days valuation of the end of each calendar month or (b) Approved Financings taking into account the reduction benefit of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything Permitted Interest Rate Hedge Agreement pursuant to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required a methodology to monitor the Ratings of Included Investors, and the be agreed among Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of time such adjustmentPermitted Interest Rate Hedge Agreement is entered into.
Appears in 3 contracts
Samples: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Borrowing Base Certificate. Within ten (10a) days of Borrower shall provide the Administrative Agent with the following documents in a form and detail reasonably satisfactory to Administrative Agent: as soon as possible after the end of each calendar month, fiscal month (but in any event within fifteen (15) Business Days after the Borrowers shall deliver to the Administrative Agent an updated end thereof) a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base, the Term Borrowing Base, the Aggregate Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding fiscal month, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements of this Section 7.4(b) in respect of Borrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis until January 15th of the next succeeding calendar year.
(b) At any time during the occurrence and continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on the last day of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day).
(c) The Borrower shall also cooperate with (and cause its Subsidiaries to cooperate with) the Administrative Agent, in connection with updates to the most recent inventory appraisal delivered under Section 7.4 of the Existing Credit AgreementAgreement that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (the “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base attributable to Inventory and the Administrative Agent may carry out, at the Borrower’s expense, one (1) Updated Inventory Appraisal in any period of 12 consecutive months; provided, however, that notwithstanding anything the foregoing limitations (x)(i) at any time on or after the date on which Excess Availability has been less than the greater of (A) $60,000,000 and (B) 15% of the Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent shall, solely to the contrary in this Credit Agreement extent an Updated Inventory Appraisal has not occurred within three (3) months of the relevant date of determination, or may, at any other Loan Documenttime, carry out, at the Borrower’s expense, two (2) Updated Inventory Appraisals during the following 12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Updated Inventory Appraisals as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Updated Inventory Appraisal in any period of 12 consecutive months. The Borrower is not required shall furnish to monitor the Ratings Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of Included Investorsthe Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(d) The Administrative Agent may carry out investigations and reviews of each Loan Party’s property at the reasonable expense of the Borrower (including field audits conducted by the Administrative Agent) (“Field Examination”) and the Administrative Agent will monitor such Ratings and may adjust carry out, at the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least Borrower’s expense, one (1) Business Day Field Examination in advance any period of 12 consecutive months; provided, however, that notwithstanding the foregoing limitations, (x)(i) at any time on or after the date on which Excess Availability has been less than the greater of (A) $60,000,000 and (B) 15% of the effective Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent shall, solely to the extent a Field Examination has not occurred within three (3) months of the relevant date of such adjustmentdetermination, or may, at any other time, carry out, at the Borrower’s expense, two (2) Field Examinations during the following 12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent shall carry out, at the Borrower’s expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any period of 12 consecutive months. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
Appears in 3 contracts
Samples: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Borrowing Base Certificate. Within ten As soon as available but in any event on or prior to the 20th calendar day after the later of (10i) days of the end last day of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor month and (ii) certifying that no Default the last day of each retail month (based on the Borrower Agent’s 52/53 week year end (the period ending on such later date, a “Fiscal Month”)) (or Event more frequently as the Borrower Agent may elect, so long as the frequency of Default existsdelivery is maintained by the Borrower Agent for the immediately following 60 day period), or specifying any such Default or Event of Default; provided, however, that such a Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance close of Investor Capital Calls to Investors business on the last day of the immediately preceding fiscal month (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than or in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in voluntary delivery of a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate at the election of the aggregate Investor Capital CommitmentsBorrower Agent’s, a subsequent date), together with such supporting information in connection therewith as the Administrative Agent may reasonably request, which case such updated may include, without limitation, (A) Inventory reports by category and location, together with a reconciliation to the corresponding Borrowing Base Certificate, (B) a reasonably detailed calculation of Eligible Inventory, (C) a reconciliation of the Loan Parties’ Inventory between the amounts shown in the Borrower Agent’s stock ledger and any Inventory reports delivered pursuant to clause (A) above, (D) a reasonably detailed calculation of Eligible Trade Receivables and Eligible Credit Card Receivables, and (E) a reasonably detailed aging of the Loan Parties’ Accounts and a reconciliation to the corresponding Borrowing Base Certificate; provided that (1) upon the occurrence and during the continuance of a Cash Dominion Event, the Borrower Agent shall deliver a Borrowing Base Certificate and such supporting information as is reasonably practicable to provide on a weekly basis on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and (2) any Borrowing Base Certificate delivered other than with respect to month’s end may be based on such estimates by the Borrower Agent of shrink and other amounts as the Borrower Agent may deem necessary; provided, further, that a revised Borrowing Base Certificate based on the Borrowing Base Certificate most recently delivered shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within five (5) Business Days following after the occurrence of (a) any Exclusion Event and a Responsible Officer consummation of a Credit sale or other disposition (or merger, consolidation or amalgamation that constitutes a sale or disposition) of any Capital Stock of a Loan Party obtaining actual knowledge thereof so long to any Person other than a Loan Party that results in the disposition of Revolving Facility First Lien Collateral with an aggregate value in excess of $20,000,000, together with such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and reasonably requested by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.Agent; and
Appears in 3 contracts
Samples: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Borrowing Base Certificate. Within ten (10) days of As soon as available but in any event on or prior to 15th Business Day following the end of each calendar the previous fiscal month beginning with the first fiscal month ending after the Restatement Effective Date, a Borrowing Base Certificate as of the close of business on the last day of the immediately preceding fiscal month, substantially in the Borrowers form of Exhibit N hereto; provided that the Borrower may elect to deliver the Borrowing Base Certificate on a more frequent basis but if such election is exercised, it must be continued until the date that is 30 days after the date of such election (with a frequency equal to that of the initial additional Borrowing Base Certificate delivered by the Borrower for such period); provided, further, that upon the commencement and during the continuance of a Weekly Reporting Period, the Borrower shall deliver to a Weekly Borrowing Base Certificate and such supporting information on Wednesday of each week (or if Wednesday is not a Business Day, on the Administrative Agent next succeeding Business Day), as of the close of business on the immediately preceding Saturday; provided, further, that upon the sale or other disposition of Collateral of any Credit Party included in the Borrowing Base outside of the ordinary course of business yielding net cash proceeds of $50,000,000 or more, the Borrower shall also furnish an updated Borrowing Base Certificate certified by a Responsible Officer giving pro forma effect thereto promptly upon the receipt of each Borrower the net cash proceeds from such sale or other disposition. Documents required to be true delivered pursuant to clauses (a), (b), and correct (g) of this Section 9.1 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) setting forth the Borrower posts such documents, or provides a calculation of link thereto on the Available Commitment as of such date of delivery, and, if included in Borrower’s website on the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and Internet; (ii) certifying that no Default such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or Event of Default existsanother website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), or specifying (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at xxx.xxx.xxx; provided that (A) the Borrower shall, at the request of the Administrative Agent, continue to deliver copies (which delivery may be by electronic transmission) of such documents to the Administrative Agent and (B) the Borrower shall notify (which notification may be by facsimile or electronic transmission) the Administrative Agent of the posting of any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) documents on any website described in connection with any new Borrowing or request for Letter of Credit (and this paragraph. Each Lender shall be attached solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 9.1 may be satisfied with respect to financial information of the related Request for Borrowing Borrower and its Restricted Subsidiaries by furnishing (A) the Form 10-K or Request for Letter of Credit10-Q (or the equivalent), as applicable, and shall give pro forma effect of the Borrower (or a parent company thereof) filed with the SEC or with a similar regulatory authority in a foreign jurisdiction or (B) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings); provided that to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of parent, on the issuance of Investor Capital Calls one hand, and the information relating to Investors (delivered to the Borrower and its Restricted Subsidiaries on a stand-alone basis, on the other hand. Each Credit Party hereby acknowledges and agrees that, unless the Borrower notifies the Administrative Agent along with a summary of such Investor Capital Calls in advance, all financial statements and calculated after giving effect certificates furnished pursuant to the related Investor Capital Contributions requested by such Investor Capital CallsSections 9.1(a); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything and (d) above are hereby deemed to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investorsbe suitable for distribution, and to be made available, to all Lenders and may be treated by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of Lenders as not containing any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentmaterial nonpublic information.
Appears in 2 contracts
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.), Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of On the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor Closing Date and (ii) certifying not later than 5:00 P.M. (New York time) on or before the 15th Business Day of each fiscal month thereafter, (A) a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit I (each, a “Borrowing Base Certificate”) and setting forth the aggregate amount of unrestricted cash of Pyxus Topco and its Subsidiaries on a consolidated basis as of the last day of the prior fiscal month, (B) accounts receivable agings inclusive of reconciliations to the general ledger, (C) accounts payable schedules inclusive of reconciliations to the general ledger, (D) screenshots of balances for the prior month with respect to the Collection Accounts and Concentration Accounts (and any other depository accounts reasonably requested by Agent), and (E) Inventory reports, each of which shall be prepared as of the last Business Day of the fiscal month immediately preceding such required delivery. Each such Borrowing Base Certificate shall include such supporting information as may be reasonably requested from time to time by the Administrative Agent (including a break-down of all Accounts during the last fiscal month that were subject to the Permitted Receivables Liens). In addition, Borrower shall deliver at such intervals as Administrative Agent may require: (i) confirmatory assignment schedules; (ii) copies of Customer’s invoices; (iii) evidence of shipment or delivery; and (iv) such further schedules, documents and/or information regarding the Collateral as Administrative Agent may reasonable require. Subject to the immediately succeeding sentence, the Administrative Agent shall have the right to confirm and verify all Accounts by any manner and through any medium that it reasonably considers advisable, and the Loan Parties shall furnish all such assistance and information as the Administrative Agent may reasonably request in connection with such test verifications; provided, however that, so long as no Default or Event of Default existsshall have occurred and be continuing, such test verifications shall only occur during a field examination with Borrower Agent communicating directly with an account debtor in the presence of a representative of Agent (unless otherwise agreed to by Borrower Agent). The Administrative Agent in its own name or specifying in the name of others may at any such time after the occurrence and during the continuation of a Default or an Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection Default communicate with any new Borrowing or request for Letter of Credit (and shall be attached account debtors on the Accounts to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered verify with them to the Administrative Agent’s reasonable satisfaction the existence, amount and terms of any Accounts. The items to be provided under this Section are to be in form satisfactory to Administrative Agent along with a summary and executed by the Borrower Agent and delivered to Administrative Agent from time to time solely for Administrative Agent’s convenience in maintaining records of the Collateral, and any Loan Party’s failure to deliver any of such Investor Capital Calls and calculated after giving effect items to Administrative Agent shall not affect, terminate, modify or otherwise limit Administrative Agent’s Lien with respect to the related Investor Capital Contributions requested Collateral. Unless otherwise agreed to by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sAdministrative Agent, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor items to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate be provided under this Section 9.01 shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating by a method of any Rated Included Investor is downgraded Approved Electronic Communication (including, without limitation, by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentemail).
Appears in 2 contracts
Samples: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBorrowing); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 2 contracts
Samples: Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (New PubCo Renewable Power Inc.)
Borrowing Base Certificate. Within ten (10i) days Unless clause (ii) below applies, not later than (A) so long no Monthly Reporting Period is in effect, 5:00 P.M. (New York City time) on or before the 15th day after the close of each Fiscal Quarter, or (B) during any period in which a Monthly Reporting Period is in effect, 5:00 P.M. (New York City time) on or before the 20th day of each Fiscal Month thereafter, (ii) during any period in which a Dominion Period is in effect, not later than 5:00 P.M. (New York City time) on or before Friday of each week with respect to the business week ended the previous Saturday, (iii) [reserved] and (iv) at the time of the end consummation of any Asset Sale involving ABL Facility Priority Collateral, a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit M (each, a “Borrowing Base Certificate”), which shall be (A) prepared as of the last Business Day of the preceding Fiscal Month in the case of each calendar monthBorrowing Base Certificate delivered after the Effective Date pursuant to clause (i)(B) above (or, if (x) any such Borrowing Base Certificate is delivered pursuant to clause (i)(A) above, as of the last Business Day of the preceding Fiscal Quarter or (y) any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week preceding such delivery), (B) in the case of preceding clause (iv), prepared as of the date most recently required above, but on a Pro Forma Basis for any relevant events described in clause (iv) above and (C) accompanied by the supporting documentation required in connection therewith as set forth on Schedule 9.01(f). Each such Borrowing Base Certificate shall include such supporting information as may be reasonably requested from time to time by the Administrative Agent. In addition to the delivery of a Borrowing Base Certificate provided for in this Sections 9.01(f), the Borrowers shall deliver to provide an updated spreadsheet including information on the leased locations, such locations’ designation as “approved but not papered locations”, “unapproved and passive locations”, “unapproved and resistant locations” and “approved and papered locations”, related rent information and such other information as the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or may reasonably request for Letter purposes of Credit (and shall be attached to determining the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentPast-Due Rent Reserves.
Appears in 2 contracts
Samples: Abl Credit Agreement (J.Jill, Inc.), Abl Credit Agreement (J.Jill, Inc.)
Borrowing Base Certificate. Within ten (10a) days On the Business Day immediately preceding the Business Day on which Borrower requests that Agent make a Loan or establish a Credit, and in addition, twice each month on the fifteenth (15th) day of such month (or if not a Business Day, then the end immediately following Business Day) and the last Business Day of each calendar such month, the Borrowers whether or not Borrower is requesting or has requested any Loans or Credits or more frequently at Borrower's option or as Lender may request, Borrower shall deliver to the Administrative provide Agent an updated a Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a Borrower's calculation of the Available Commitment Loans and Credits available to Borrower pursuant to the terms and conditions contained in the Accounts Agreement and herein as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) immediately preceding Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than Day in the case of a transfer from one existing PWM Investor Borrowing Base Certificate delivered to another existing PWM Investor Agent other than on the fifteenth (15th) day or from an existing PWM Investor to a new PWM Investorlast day of any month, unless such transfer will result or as of the last Business Day of the immediately preceding two (2) week period in the case of a Borrowing Base deficiency Certificate delivered to Agent on the fifteenth (15th) day or cause all transfers for such month to equal 1% or more last day of the aggregate Investor Capital Commitmentsmonth, as the case may be, in each case, duly completed and executed by the chief financial officer or other appropriate financial officer of Borrower acceptable to Agent, together with all schedules required pursuant to the terms of the Borrowing Base Certificate duly completed (including, without limitation, a schedule of all Accounts created, collections received and credit memos issued for each day of the immediately preceding week); provided, that, without -------- ---- limiting any other rights of Agent or Lender, upon Agent's request, Borrower shall provide Agent on a daily basis with a schedule of Accounts, collections received and credits issued and on a weekly basis with an inventory report in the event that at any time either: (i) an Event of Default, or event which case such updated with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, or (ii) Borrower shall have failed to deliver any Borrowing Base Certificate in accordance with the terms hereof, or (iii) upon Agent's good faith belief, any information contained in any Borrowing Base Certificate is incomplete, inaccurate or misleading, or (iv) Excess Availability shall be less than ten (10%) percent of the Maximum Credit.
(b) Nothing contained in any Borrowing Base Certificate shall be delivered deemed to limit, impair or otherwise affect the rights of Agent contained herein and in the event of any mandatory prepayment required by this Credit Agreement shall be made, conflict or inconsistency between the calculation of the Loans and Credits available to Borrower as set forth in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate and as determined by Agent, the determination of Agent shall govern and be delivered conclusive and binding upon Borrower. Without limiting the foregoing, Borrower shall furnish to Agent any mandatory prepayment required information which Agent may reasonably request regarding the determination and calculation of any of the amounts set forth in the Borrowing Base Certificate. If any of Borrower's records or reports of the Collateral are prepared or maintained by this Credit Agreement an accounting service, contractor, shipper or other agent, Borrower hereby irrevocably authorizes such service, contractor, shipper or agent to deliver such records, reports and related documents to Agent and to follow Agent's instructions with respect to further services at any time that an Event of Default exists or has occurred.
(c) Borrower shall be madepromptly notify Agent in writing in the event that at any time: (i) the amount of Loans and otherwise, Exclusion Events may be reported Credits available to Borrower pursuant hereto is less than ninety (90%) percent of the amount of Loans and a updated Credits available to Borrower pursuant hereto and reflected in the most recent prior Borrowing Base Certificate providedpreviously delivered by Borrower to Lender pursuant to Section 5.2(a) within hereof, (ii) the Loans made by Agent to Borrower and/or Credits outstanding at such time exceed the amount of the Loans and Credits then available to Borrower under the terms hereof as a result of any decrease in the amount of Loans and Credits then available and the amount of such excess, or (iii) Excess Availability is less than ten (10%) days percent of the end of each calendar month or (b) the reduction Maximum Credit as a result of any Investor’s Investor Capital Commitment decrease in accordance with the amounts of Loans and Credits available to Borrower pursuant to the terms and conditions contained herein.
(d) Borrower shall furnish or cause to be furnished to Agent such budgets, forecasts, projections and other information respecting the Collateral and the business of this Credit Agreement; providedBorrower, howeveras Agent may, that notwithstanding anything from time to the contrary in this Credit Agreement time, reasonably request. Agent is hereby authorized to deliver a copy of any financial statement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice information relating to the Borrowers at least one (1) Business Day in advance business of the effective date of such adjustmentBorrower to any court or other government agency or to any participant or assignee or prospective participant or assignee.
Appears in 2 contracts
Samples: Loan Agreement (Pny Technologies Inc), Loan Agreement (Pny Technologies Inc)
Borrowing Base Certificate. Within ten (10) days On the Closing Date and no later than the 25th day of each month thereafter until payment of all Loans outstanding hereunder and all other amounts payable to the Lenders and the Agent under the Notes and other Loan Documents, termination or expiry of all outstanding Letters of Credit and termination of the end Commitments of each calendar monththe Lenders, the Borrowers Company shall deliver to the Administrative Agent an updated a Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct the Agent relating to the then most recently ended month (i) setting forth a calculation except solely in the case of the Available Commitment Borrowing Base Certificate delivered on the Closing Date, which such Borrowing Base Certificate shall, except for Fair Market Values of any Eligible Assets determined by Approved Appraisers as of such date of deliveryat any other dates, andrelate to October 31, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default1997); provided, however, that in addition to such regular monthly certificates, the Company shall also deliver Borrowing Base Certificates when required, pursuant to subsection 2.4B(iii)(1), 2.10B(ii)(1) or 3.3(vii). Each Borrowing Base Certificate shall replace and supersede for all purposes of this Agreement the Borrowing Base Certificate then most recently delivered. Such Borrowing Base Certificate shall (1) state each component of Borrowing Base Collateral then subject to perfected Liens of the Security Agreements, (2) state the portion of the Borrowing Base established by each component Borrowing Base Collateral by the formula stated in the definition of Borrowing Base, (3) state the Borrowing Base by aggregating each of the values stated pursuant to the preceding clause (2), and (4) state the then Outstanding Amounts and the amount of any Borrowing Base Deficiency. The Borrowing Base Certificate shall (A) certify that none of the Borrowing Base Collateral included in the calculation of the Borrowing Base is subject to an Event of Loss, Event of Damage, Repairable Event or Adjustment Event or, if any of such Borrowing Base Collateral is subject to an Event of Loss, Event of Damage, Repairable Damage or Adjustment Event, such Borrowing Base Certificate will be delivered more frequently: (i) in connection with shall contain the relevant exclusions for any new such Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect Base Collateral subject to such new Event of Loss, Event of Damage, Repairable Damage or Adjustment Event as required by subsections 2.4B(iii)(1) and 2.10A hereof, (B) certify that no reduction in the Borrowing or Base is required pursuant to subsection 2.4B(iii)(1)(e) or, if the Company cannot so certify, contain the exclusion required by such new Letter of Credit); subsection and (iiC) within three (3) Business Days certify that the portion of the issuance of Investor Capital Calls Borrowing Base attributable to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than Rotables stated in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate does not exceed fifty percent (50%) of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madestated in such certificate or that, in each case, prior to if the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence portion of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice attributable to the Borrowers at least one Rotables does exceed fifty percent (150%) Business Day in advance of the effective date aggregate Borrowing Base, the portion of the Borrowing Base attributable to the Rotables in such adjustment.certificate for purposes of calculating the Borrowing Base excludes such excess amount. In determining the book value of Rotables in any Borrowing Base Certificate, the Company shall use its normal accounting procedures except to the
Appears in 2 contracts
Samples: Revolving Credit Agreement (America West Airlines Inc), Revolving Credit Agreement (America West Airlines Inc)
Borrowing Base Certificate. (i) As soon as available, but in any event on or prior to the 12th Business Day of each calendar month, a Borrowing Base Certificate in the form of Exhibit A which calculates the Borrowing Base as of the last day of the calendar month then last ended and updated information thereto as required by Schedule A to Exhibit A, together with supporting information in connection therewith and any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(ii) Within ten (10) days five calendar days, or if the fifth calendar day is not a Business Day, the immediately preceding Business Day of the end of each calendar monthweek during any Weekly Reporting Period, a Borrowing Base Certificate in the form of Exhibit A calculating the Borrowing Base as of the end of the last day of the immediately preceding calendar week and updated information thereto as required by Schedule A to Exhibit A (provided that if the Borrowers shall deliver are unable to calculate all or a portion of the Borrowing Base under this clause (ii) as of the end of the last day of the immediately preceding calendar week, the Administrative Agent may, in its sole discretion, agree to permit all or a portion of the Borrowing Base to be calculated as of the end of a different date on or after the last day of the calendar month then last ended, taking into account the Borrowers’ existing financial reporting systems and subject to any Reserves implemented by the Administrative Agent in connection therewith) in each case, together with supporting information in connection therewith and any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(iii) as soon as practicable and in any event within three Business Days after any disposition outside the ordinary course of business (including by way of casualty or condemnation) of Collateral having a book value exceeding $5.0 million, an updated Borrowing Base Certificate certified by calculating (on a Responsible Officer pro forma basis, after giving effect to such disposition and reflecting only the changes to the affected component(s) from such disposition of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, ) and certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such pro forma Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing as of the end of the most recent calendar week or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditmonth, as applicable, and shall give pro forma effect for which a Borrowing Base Certificate was delivered pursuant to such new Borrowing clause (i) or such new Letter of Credit); (ii) within three (3) Business Days of above together with supporting information in connection therewith and any additional reports with respect to the issuance of Investor Capital Calls to Investors (delivered to Borrowing Base as the Administrative Agent along may reasonably request. The Borrowing Base set forth in each Borrowing Base Certificate delivered with respect to each calendar month occurring after the calendar week covered by the updated Borrowing Base Certificate described in the preceding sentence and ending prior to any such disposition shall be calculated on a summary of such Investor Capital Calls and calculated pro forma basis, after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentdisposition.
Appears in 2 contracts
Samples: Credit Agreement (Railamerica Inc /De), Credit Agreement (Railamerica Inc /De)
Borrowing Base Certificate. Within ten (10) days of As soon as available but in any event on or prior to 17th Business Day following the end of each calendar the previous fiscal month beginning with the first fiscal month ending after the Closing Date, a Borrowing Base Certificate as of the close of business on the last day of the immediately preceding fiscal month, substantially in the form of Exhibit N hereto; provided that the Borrowers may elect to deliver the Borrowing Base Certificate on a more frequent basis but if such election is exercised, it must be continued until the date that is 60 days after the date of such election (with a frequency equal to that of the initial additional Borrowing Base Certificate delivered by the Borrowers for such period); provided, further, that upon the commencement and during the continuance of a Weekly Reporting Period, the Borrowers shall deliver to a Weekly Borrowing Base Certificate and such supporting information on Wednesday of each week (or if Wednesday is not a Business Day, on the Administrative Agent next succeeding Business Day), as of the close of business on the immediately preceding Saturday; provided, further, that upon the sale or other disposition of Collateral of any Credit Party included in the Borrowing Base that constitutes 10% or more of the Borrowing Base, the Borrowers shall also furnish an updated Borrowing Base Certificate certified by a Responsible Officer giving pro forma effect thereto promptly upon the receipt of each Borrower the net cash proceeds from such sale or other disposition. Documents required to be true delivered pursuant to clauses (a), (b), and correct (g) of this Section 9.1 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) setting forth a calculation of the Available Commitment as of Lead Borrower posts such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default existsdocuments, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to provides a link thereto on the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit)Lead Borrower’s websites on the Internet; (ii) within three such documents are posted on the Lead Borrower’s behalf on Syndtrak, IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (3whether a commercial, third party website or whether sponsored by the Administrative Agent), or (iii) Business Days such financial statements and/or other documents are posted on the SEC’s website on the internet at xxx.xxx.xxx; provided that (A) the Lead Borrower shall, at the request of the issuance Administrative Agent, continue to deliver copies (which delivery may be by electronic transmission) of Investor Capital Calls to Investors (delivered such documents to the Administrative Agent along with a summary and (B) the Lead Borrower shall notify (which notification may be by facsimile or electronic transmission) the Administrative Agent of the posting of any such documents on any website described in this paragraph. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such Investor Capital Calls documents from the Administrative Agent and calculated after giving effect to the related Investor Capital Contributions requested by maintaining its copies of such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investordocuments. Each Credit Party hereby acknowledges and agrees that, unless such transfer will result the Lead Borrower notifies the Administrative Agent in a Borrowing Base deficiency or cause advance, all transfers for such month financial statements and certificates furnished pursuant to equal 1% or more of the aggregate Investor Capital CommitmentsSections 9.1(a), in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything and (d) above are hereby deemed to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investorsbe suitable for distribution, and to be made available, to all Lenders and may be treated by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of Lenders as not containing any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentmaterial nonpublic information.
Appears in 1 contract
Samples: Abl Credit Agreement (Bountiful Co)
Borrowing Base Certificate. Within ten (10i) days of On the end Effective Date, (ii) not later than 5:00 P.M. (New York time) on or before the 15th day of each calendar month, the Borrowers shall deliver to month thereafter (or at such other times as the Administrative Agent may reasonably request), (iii) at the time of the consummation of a Permitted Acquisition, (iv) not later than 5:00 P.M. (New York time) on or before each Wednesday on a weekly basis during a Compliance Period or after the occurrence and during the continuance of an updated Event of Default, (v) at the time of consummation of any Asset Sale (or series of contemporaneous or related Asset Sales) of assets with a book value which is equal to or greater than $25,000,000 or the Equivalent Amount thereof and (vi) at such other times as US Company may elect (provided that if US Company elects to deliver a borrowing base certificate at any other time pursuant to this clause (vi), US Company shall deliver a borrowing base certificate on a weekly basis for the 60 day period following such delivery), a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonably detail) substantially in the form of Exhibit P (each, a “Borrowing Base Certificate”), which shall be prepared (A) as of February 28, 2019 in the case of the initial Borrowing Base Certificate certified by a Responsible Officer and (B) as of the last Business Day of the preceding month in the case of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such subsequent Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditbut adjusted, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor Borrowing Base Certificate delivered in connection with a Permitted Acquisition, to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorreflect any Eligible Accounts, unless such transfer will result in Eligible Inventory, Eligible Machinery and Equipment and Eligible Real Property acquired by a Borrowing Base deficiency or cause all transfers for Party pursuant to such month to equal 1% or Permitted Acquisition) (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the aggregate Investor Capital Commitments, in which case last Business Day of the week preceding such updated delivery). Each such Borrowing Base Certificate shall include the then applicable, marked-to-market Swap Termination Value which the Borrower intends be delivered treated as a Qualified Swap Termination Value for purposes of Section 5.03(d), and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long all such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably requested from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and time by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentAgent.
Appears in 1 contract
Borrowing Base Certificate. Within ten As soon as available but in any event on or prior to the 15th calendar day after the later of (10x) days of the end last day of each calendar monthmonth and (y) the last day of each retail month (based on the Borrower's 52/53 week year end) (or more frequently as the Borrower may elect), the Borrowers shall deliver to the Administrative Agent an updated a Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation as of the Available Commitment as close of such date of delivery, and, if included in business on the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days last day of the issuance of Investor Capital Calls to Investors immediately preceding fiscal month (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than or in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in voluntary delivery of a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate at the election of the aggregate Investor Capital CommitmentsBorrower, a subsequent date), together with such supporting information in connection therewith as the Agents may reasonably request, which case such updated may include, without limitation, (i) Inventory reports by category and location, together with a reconciliation to the corresponding Borrowing Base Certificate, (ii) a reasonably detailed calculation of Eligible Inventory, (iii) a reconciliation of the Loan Parties' Inventory between the amounts shown in the Borrower's stock ledger and any Inventory reports delivered pursuant to clause (i) above, (iv) a reasonably detailed calculation of Eligible Trade Receivables, and (v) a reasonably detailed aging of the Loan Parties' Accounts and a reconciliation to the corresponding Borrowing Base Certificate; provided that upon the occurrence and during the continuance of an Event of Default or if Excess Availability is at any time less than $20,000,000, the Borrower shall deliver a Borrowing Base Certificate shall be delivered and such supporting information as is reasonably practicable to provide on a weekly basis on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and provided further, that any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events other than with respect to month's end may be reported based on such estimates by the Borrower of shrink and other amounts as the Borrower may deem necessary.
(and a updated Borrowing Base Certificate providedi) within ten (10) days of upon written request by the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan DocumentAdministrative Agent, the Borrower is not required shall deliver paper copies of such documents to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may adjust be by facsimile or electronic mail) the Borrowing Base if Administrative Agent of the Rating posting of any Rated Included Investor is downgraded by providing notice such documents and provide to the Borrowers at least one Administrative Agent by electronic mail electronic versions (1i.e., soft copies) Business Day in advance of the effective date of such adjustmentdocuments.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10) days So long as there are no Loans outstanding or Letters of Credit Outstanding, as soon as practicable and in any event within five Business Days prior to the date of a Borrowing of Loans or the date of issuance of any Letter of Credit, the Borrowers shall have delivered a Borrowing Base Certificate in the form of Exhibit A which calculates the Borrowing Base as of the end last day of the calendar month then last ended and updated information thereto as required by Schedule A to Exhibit A, together with supporting information in connection therewith and any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.”
(d) Subsection 9.1(c) is hereby amended by replacing the words “30 days” with the words “60 days.”
(e) Subsection 9.1(e) of the Credit Agreement is hereby by deleting subclause (i) thereof and replacing it with the following:
(i) A Borrowing Base Certificate in the form of Exhibit A which calculates the Borrowing Base as of the last day of the calendar month then last ended and updated information thereto as required by Schedule A to Exhibit A, together with supporting information in connection therewith and any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request, either (x) as soon as available, but in any event on or prior to the 12th Business Day of each calendar month, if there are Loans outstanding or Letters of Credit Outstanding, or (y) concurrently with delivery of financial statements under clause (a) or (b) above if there are no Loans outstanding or Letters of Credit Outstanding.”
(f) Subsection 10.5(j) of the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified Credit Agreement is hereby amended by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation deleting clause (ii)(B)(x) of the Available Commitment as of such date of delivery, and, if included in proviso thereto and replacing it with “(x) the Borrowing Base, certifying Fixed Charge Coverage Ratio for the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor most recently ended Test Period for which Section 9.1 Financials have been delivered would be at least 1.15 to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor 1.00” and (ii) certifying that no Default or Event deleting the word “Availability” in clause (ii)(B)(y) of Default exists, or specifying any such Default or Event the proviso thereto and replacing it with the words “Total Liquidity.”
(g) Subsection 10.6 of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: the Credit Agreement is hereby amended by (i) in connection deleting clause (B)(x) of the proviso to Section 10.6(c) thereto and replacing it with any new Borrowing or request “(x) the Fixed Charge Coverage Ratio for Letter of Credit (the most recently ended Test Period for which Section 9.1 Financials have been delivered would be at least 1.25 to 1.00” and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three deleting the word “Availability” in clause (3B)(y) Business Days of the issuance of Investor Capital Calls proviso to Investors Section 10.6(c) thereto and replacing it with the words “Total Liquidity.”
(delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iiih) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Subsection 10.9 of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, is hereby amended and restated in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long its entirety as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.follows:
Appears in 1 contract
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital (as defined in the LLC Agreement) included in the Unfunded Capital Commitments Commitments, the FX Reserve reflecting current Spot Rates and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, ’s Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 13% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party Borrower obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Goldman Sachs Private Middle Market Credit LLC)
Borrowing Base Certificate. Within ten (10a) By 12:00 noon, Chicago time (i) two (2) Business Days after the Friday of each week and (ii) twenty-five (25) days of after the end of each calendar monthfiscal month (and on any other date on which CIT reasonably requests), the Borrowers Borrower shall deliver furnish to the Administrative Agent an updated CIT a certificate ("Borrowing Base Certificate certified Certificate") substantially in the form attached hereto as Exhibit G, executed by a Responsible Designated Financial Officer of each Borrower to be true and correct (i) the Borrower, setting forth a calculation the Borrowing Base and the other information required therein as of the Available Commitment as Borrower's close of such date of delivery, and, if included in business on the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days Saturday of the issuance of Investor Capital Calls to Investors preceding week (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of the weekly 28 Borrowing Base Certificates), or as of the Borrower's close of business on the last day of each fiscal month (in the case of subsequent monthly Borrowing Base Certificates), in each case together with such other information with respect to the Inventory of the Borrower as CIT may reasonably request. The weekly Borrowing Base Certificate may be prepared based upon a transfer from one existing PWM Investor to another existing PWM Investor good faith estimate by the Borrower of its Inventory.
(b) In the event of any dispute about the eligibility of any asset for inclusion in the Borrowing Base or from an existing PWM Investor to a new PWM Investorthe valuation thereof, unless such transfer will result CIT's good faith reasonable judgment shall control.
(c) The Borrowing Base set forth in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered effective from and including the date such Borrowing Base Certificate is duly received by CIT to but not including the date on which a subsequent Borrowing Base Certificate is duly received by CIT, unless CIT disputes the eligibility of any mandatory prepayment required asset for inclusion in the Borrowing Base or the valuation thereof by this Credit Agreement shall be madenotice of such dispute to the Borrower, in each casewhich case the value of such asset shall, prior to at the effectiveness thereof); and (iv) no later than five (5) Business Days following discretion of the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result Borrower, either not be included in a the Borrowing Base deficiency or cause all Exclusion Events for such month be included in the Borrowing Base with a value reasonably acceptable to equal 1% or more of aggregate Investor Capital Commitments CIT.
(in which case, such updated d) Each Borrowing Base Certificate shall be delivered accompanied by backup schedules showing the derivation thereof and any mandatory prepayment required by this Credit Agreement shall be made) containing such detail and otherwise, Exclusion Events such other and further information as CIT may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably request from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmenttime.
Appears in 1 contract
Borrowing Base Certificate. Within ten Should borrowing(s) under the Loan exceed One Million Five Hundred Thousand and 00/100 (10$1,500,000.00) days Dollars, any borrowing over that threshold amount shall require Borrower’s submission to Bank and Bank’s satisfactory review and approval of borrowing base certificate(s) both upon the initial advance request and continuing quarterly thereafter as long as there is an outstanding balance under the Loan. Advance(s) made pursuant to submission(s) of borrowing base certificate(s) shall be limited to seventy five percent (75%) of Borrower’s eligible accounts receivable. The term, “eligible accounts receivable” shall mean accounts receivable of Borrower meeting all of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequentlyfollowing specifications: (i) in connection with any new Borrowing the account receivable is lawfully and exclusively owned by Borrower and subject to no lien or request for Letter security interest (other than the Lender’s security interest(s)) and Borrower has the right of Credit (assignment thereof and shall be attached the power to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit)grant a security interest therein; (ii) within three the account receivable is valid and enforceable representing the undisputed indebtedness of an account debtor, provided that it is not due or unpaid for more than (3a) Business Days of ninety (90) days after the issuance of Investor Capital Calls to Investors original invoice due date and (delivered to the Administrative Agent along with b) does not represent a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls)rebilling in each case; (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment not more than fifty percent (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more 50%) of the aggregate Investor Capital Commitmentsbalance of all accounts receivable owing from an account debtor obligated on the account receivable are outstanding more than ninety (90) days past their original invoice due dates; (iv) the amount of the account receivable, in which case when aggregated with all other accounts receivable of such updated Borrowing Base Certificate shall be delivered and account debtor, is less than twenty five (25%) of the face value of all accounts receivable of Borrower then outstanding; (v) the account receivable is not subject to any mandatory prepayment required by this Credit Agreement shall be madedefense, in each caseset-off, prior or counterclaim, deduction, discount, credit, chargeback, freight claim, allowance or adjustment of any kind; (vi) the account receivable is net of any portion thereof attributable to the effectiveness thereof)sale of goods that have been returned, rejected, lost or damaged; (vii) if the account receivable 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 repurchase or return agreement, and such goods have been shipped to the account debtor or its designee; (viii) if the account receivable arises from the performance of services, such services have actually been performed; (ix) the account receivable arose in the ordinary course of Borrower's business; (x) no notice of the bankruptcy, receivership, reorganization, liquidation, dissolution, or insolvency of the account receivable debtor has been received by Bank or Borrower; (xi) the account receivable is an account receivable for which Bank believes that the validity, enforceability or collection of the account receivable is not invalid or otherwise impaired; (xii) the account debtor is not a subsidiary or an affiliate of Borrower; (xiii) the sale does not represent a sale pursuant to a government contract unless Borrower has complied, for the benefit of Bank, with the Assignment of Claims Act; (xiv) the account receivable is not an account receivable of a debtor having its principal place of business or executive office outside the United States, unless the payment of such account receivable is guaranteed by an irrevocable letter of credit issued by a domestic bank satisfactory to the Bank or by credit insurance, satisfactory to Bank; (xv) the account receivable is not an account on which the account receivable debtor is obligated to Borrower under any instrument (as that term is defined by the New Jersey Uniform Commercial Code (Title 12A of New Jersey Statutes) as amended from time to time; (xvi) the transaction which gave rise to the account receivable complies in all material respects with all applicable laws, rules and regulations of any governmental authority; and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (bxvii) the reduction account receivable meets such other reasonable specifications and requirements which may from time to time be established by Bank. Eligible accounts receivable shall not include that portion of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement an account receivable representing interest or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentfinance charges for past due balances or debit memos.
Appears in 1 contract
Samples: Modification of Promissory Note and Loan Agreement (Charge Enterprises, Inc.)
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall calculate Borrowing Base and Availability Amount and deliver to the Administrative Agent an updated (and Administrative Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate certified by a Responsible Officer of (a) in draft form no later than three (3) Business Days prior to each Borrower Payment Date (which draft shall reflect what is reasonably anticipated to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such final Borrowing Base Certificate will subject only to updates for amounts on deposit in the Revenue Account and any principal, interest and fee invoices issued after the date such draft is required to be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and prior to the applicable Payment Date), which shall be attached to in final form and executed and delivered by 12:00 p.m. (New York time) on such Payment Date (such executed Borrowing Base Certificate, a “Payment Date Borrowing Base Certificate”), showing valuations as of the related Request for Borrowing or Request for Letter close of Creditbusiness of the last day of the calendar month just ended, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (iia) within three (3) Business Days of any event or circumstance in which an Approved Financing has become a Zero Value Approved Financing, showing valuations as of the issuance of Investor Capital Calls to Investors date such Approved Financing became a Zero Value Approved Financing, (delivered to the a) within three (3) Business Days following any other demand by Administrative Agent along with a summary (which may be requested up to one (1) time per week), showing valuations as of such Investor Capital Calls and calculated after giving effect the date of demand, (d) on the date on which any Notice of Borrowing is delivered or as otherwise required pursuant to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sSection 4.1.1, Investor Capital Commitment (other than in the case showing valuations as of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or date not more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following earlier than the occurrence actual date of Advance, (ae) within three (3) Business Days after any Exclusion Event and a Responsible Officer Removal Date, (f) upon Borrowers’ request for an Additional Collateral Event, showing valuations as of a Credit Party obtaining date not more than five (5) Business Days prior to the actual knowledge thereof so long as inclusion of such Exclusion Event will result Approved Financing in a the Borrowing Base deficiency or cause all Exclusion Events for such month and (g) as otherwise required pursuant to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, howeverincluding without limitation, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentSection 8.1.3(f).
Appears in 1 contract
Samples: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Borrowing Base Certificate. Within ten (10i) As soon as available, but in any event within twenty (20) days after (x) if the Borrowing Base Threshold is satisfied, the end of the current calendar quarter and (y) if the Borrowing Base Threshold is not satisfied, the end of the current month, a Borrowing Base Certificate, together with a Back-Log Spreadsheet and a Take-Out Spreadsheet, providing, as of the end of each calendar the prior month, (A) megawatts installed, (B) megawatts added, (C) net megawatts backlog, (D) megawatts terminated, (E) the Borrowers shall deliver to Borrowing Base, (F) the Total Outstandings, (G) the Unencumbered Liquidity, (H) any contracts included in Project Back-Log that are ineligible for Tranching of Projects under any open Tax Equity Partnership (including the number, face value and reasons for rejection), (I) the NYGB Borrowing Base, (J) the Revolving Exposure of NYGB and of each other Lender, (K) the NYGB Borrowing Base Availability and (L) such other supporting information as reasonably requested by the Administrative Agent, the Collateral Agent an updated Borrowing Base Certificate or the Lenders, each prepared as at the end of such month, duly certified by a Responsible Officer that is the chief executive officer, chief financial officer, treasurer or controller of the Borrower. Notwithstanding the foregoing, in the event of a Borrowing Base Deficiency, for the period during which the Borrowing Base Deficiency exists, the Loan Parties shall deliver to the [***] = Certain information contained in this document, marked by brackets, has been omitted because it is both not material and would be competitively harmful if publicly disclosed. Administrative Agent, the Collateral Agent and the Lenders such Borrowing Base Certificate on a bi-weekly basis.
(ii) Together with each Borrower Borrowing Base Certificate delivered pursuant to Section 6.02(m)(i) above, or more frequently as requested by the Administrative Agent, the Collateral Agent or the Required Lenders, (A) the monthly or quarterly, as applicable, aging of the accounts receivable and accounts payable of the Loan Parties, (B) an aged listing of accounts related to the Eligible Direct Payment Receivables, the Eligible Customer Upfront Payment Receivables, the Eligible Trade Accounts and the Eligible Project Back-Log and (C) an Inventory report. Documents required to be true and correct delivered pursuant to Section 6.01(a) or (ib) setting forth a calculation of or Section 6.02(g) (to the Available Commitment as of extent any such date of delivery, documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if included so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provide a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 1.01(a); or (b) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website, related to an SEC filing or whether sponsored by the Administrative Agent); provided that: the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowing BaseBorrower with any such request by a Lender for delivery, certifying and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower and each other Loan Party hereby acknowledges that (A) the aggregate Recallable Capital included Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower and its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (B) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that so long as the Unfunded Capital Commitments andBorrower is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (1) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on a monthly basisthe first page thereof; (2) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, each Arranger, the transfer L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor United States federal and state securities laws (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that to the extent such Borrowing Base Certificate will Borrower Materials constitute Information, they shall be delivered more frequently: treated as set forth in Section 11.07); (3) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (4) the Administrative Agent and any Affiliate thereof and each Arranger shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, (i) the [***] = Certain information contained in connection with any new Borrowing or request for Letter of Credit (this document, marked by brackets, has been omitted because it is both not material and would be competitively harmful if publicly disclosed. Borrower shall be attached under no obligation to the related Request for Borrowing or Request for Letter of Credit, as applicable, xxxx any Borrower Materials “PUBLIC” and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3any materials furnished pursuant to Section 6.02(g) Business Days of the issuance of Investor Capital Calls to Investors (delivered to may be treated by the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in Lenders as if the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment same had been marked “PUBLIC” in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentherewith.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Borrowing Base Certificate. Within ten (10) days In the case of the end of each calendar monthBorrower, deliver or cause to be delivered, at the Borrower's expense, the Borrowers shall deliver following:
(a) To the Administrative Agent the following documents in a form satisfactory to the Administrative Agent:
(i) on a weekly basis or more frequently as the Administrative Agent an updated may request, a Borrowing Base Certificate certified (which, upon the request of any Lender, the Administrative Agent shall promptly deliver to such Lender), accompanied by a Responsible Officer of each Borrower to be true such supporting detail and correct (i) setting forth a calculation of the Available Commitment documentation as of such date of delivery, and, if included in is contemplated by the Borrowing BaseBase Certificate and/or shall be requested by the Administrative Agent in its reasonable discretion, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying provided that at any time that no Default or Event of Default existsshall exist or have occurred and be continuing the Borrower shall only be required to provide the Administrative Agent with such schedules once each month and in no event later than ten days after the end of each such month (in a form and detail satisfactory to the Administrative Agent);
(ii) on a monthly basis and in no event later than fifteen days after the end of each such month or more frequently as the Administrative Agent may in good faith request, (A) agings of Accounts (including the status of payments to owners and lessors of the leased premises of the Borrower and warehouses and processors used by Borrowers) and (B) agings of Accounts (together with a reconciliation to the previous month's aging and to its general ledger);
(iii) upon the Administrative Agent's request in good faith, (A) copies of customer statements and credit memos, remittance advices and reports, and copies of deposit slips and bank statements, and (B) a statement of the outstanding loans and payments made, and Accounts owing to, Affiliates as of the last day of the immediately preceding month.
(b) Upon the request of the Administrative Agent or any Lender, at the Borrower's expense, (i) no more than once in any twelve month period commencing on the first anniversary of the Closing Date, deliver, or specifying cause to be delivered, to the Administrative Agent written reports or appraisals of such Mortgaged Properties as the Administrative Agent may specify as in the aggregate have Appraised Values of up to twenty-five (25%) percent of the then existing aggregate Appraised Values of all of the Mortgaged Properties, so long as no Default or Event of Default shall have occurred and be continuing, provided, that, if such written appraisals reflect a decline of over twenty (20%) percent in the aggregate amount of the Appraised Values thereof from the total Appraised Values for such Mortgaged Properties subject to such appraisal as set forth in the appraisals received by the Administrative Agent prior to the date hereof, then the Administrative Agent may request updated appraisals in respect of all other Mortgaged Properties and (ii) deliver, or cause to be delivered, to the Administrative Agent written appraisals as to any such or all of the Mortgaged Properties as the Administrative Agent may request on or after a Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: in each case as to clauses (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls above, such written report or updated appraisal to Investors (delivered be in form, scope and methodology, and by an appraiser acceptable to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior addressed to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor and upon which the Administrative Agent is expressly permitted to rely; and
(c) To the Administrative Agent such Ratings other reports, statements and may adjust reconciliations with respect to the Borrowing Base if or the Rating of any Rated Included Investor is downgraded by providing notice Collateral as the Administrative Agent shall from time to the Borrowers at least one (1) Business Day time request in advance of the effective date of such adjustmentits reasonable discretion.
Appears in 1 contract
Samples: Credit Agreement (Anc Rental Corp)
Borrowing Base Certificate. Within ten two (102) days Business Days after the end of each week, and at any time after the occurrence of an Event of Default, within twenty-four (24) hours of any request of the Agent, Atlantic, Lyon, the Atlantic Agent, the Lyon Agent or any Lender, the Borrower shall deliver or cause the Administrator to deliver to the Agent a Borrowing Base Certificate dated as of the end of each calendar monthsuch week and in the case of a request by the Agent, the Borrowers shall deliver to Atlantic Agent, the Administrative Agent an updated Lyon Agent, Atlantic, Lyon or any Lender, as of the date of such request. The Borrowing Base Certificate certified shall: (A) be substantially in the form of EXHIBIT B attached hereto; (B) contain the information identified therein; and (C) contain a certification by a Responsible Officer of each Borrower to be the Administrator, signed by an Authorized Signatory, that the information set forth therein is true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, complete and, if included in the case of a week-end Borrowing BaseBase Certificate, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default then exists, or specifying any such Default or Event of Default; provided, however, that such . Failure to provide the Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and as required hereunder shall be attached deemed to be a payment default pursuant to SECTION 9.1(B) hereof but without any grace period. In the event that the Borrower or the Administrator shall deliver to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate indicating, among other things, that the Outstanding Credit exceeds any of the aggregate Investor Capital CommitmentsBorrowing Base of the outstanding Loans, in which case the Commitments or the Program Limit or that the outstanding principal amount of any Loan exceeds the Borrowing Base for such updated Loan, the Lenders shall be under no obligation to make any Loans (and the Borrower shall not request any Loan) until, provided all other terms and conditions set forth herein have been satisfied, the Borrower or the Administrator delivers to the Agent, a Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to which indicates that the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a aggregate Borrowing Base deficiency or cause for all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of outstanding Loans exceeds the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, howeverOutstanding Credit, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, Commitments and the Administrative Agent will monitor such Ratings Program Limit each exceed the Outstanding Credit and may adjust that the Borrowing Base if for each Loan exceeds the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date outstanding principal amount of such adjustmentLoan.
Appears in 1 contract
Samples: Receivables Financing Agreement (Avis Group Holdings Inc)
Borrowing Base Certificate. Within ten (10) days of As soon as available but in any event on or prior to the 15th Business Day following the end of each calendar the previous fiscal quarter, beginning with the first fiscal quarter ending after the Amendment No. 4 Effective Date (or, upon the occurrence and during the continuance of a Monthly Reporting Period, prior to the 15th Business Day following the end of the previous fiscal month beginning with the first fiscal month ending after the Restatement Effective Date), a Borrowing Base Certificate as of the close of business on the last day of the immediately preceding fiscal month,quarter (or fiscal month, if applicable), substantially in the Borrowers form of Exhibit N hereto; provided that the Borrower may elect to deliver the Borrowing Base Certificate on a more frequent basis but if such election is exercised, it must be continued until the date that is 30 days after the date of such election (with a frequency equal to that of the initial additional Borrowing Base Certificate delivered by the Borrower for such period); provided, further, that upon the commencement and during the continuance of a Weekly Reporting Period, the Borrower shall deliver to a Weekly Borrowing Base Certificate and such supporting information on Wednesday of each week (or if Wednesday is not a Business Day, on the Administrative Agent next succeeding Business Day), as of the close of business on the immediately preceding Saturday; provided, further, that upon the sale or other disposition of Collateral of any Credit Party included in the Borrowing Base outside of the ordinary course of business yielding net cash proceeds of $50,000,000 or more, the Borrower shall also furnish an updated Borrowing Base Certificate certified by a Responsible Officer giving pro forma effect thereto promptly upon the receipt of each Borrower the net cash proceeds from such sale or other disposition. Documents required to be true delivered pursuant to clauses (a), (b), and correct (g) of this Section 9.1 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) setting forth a calculation of the Available Commitment as of Borrower posts such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default existsdocuments, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to provides a link thereto on the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit)Borrower’s website on the Internet; (ii) within three such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (3whether a commercial, third-party website or whether sponsored by the Administrative Agent), or (iii) Business Days such financial statements and/or other documents are posted on the SEC’s website on the internet at xxx.xxx.xxx; provided that (A) the Borrower shall, at the request of the issuance Administrative Agent, continue to deliver copies (which delivery may be by electronic transmission) of Investor Capital Calls to Investors (delivered such documents to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (ivB) no later than five the Borrower shall notify (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events notification may be reported (and a updated Borrowing Base Certificate providedby facsimile or electronic transmission) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust of the Borrowing Base if the Rating posting of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day such documents on any website described in advance this paragraph. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of the effective date paper copies of such adjustment.documents from the Administrative Agent and maintaining its copies of such documents. -114-
Appears in 1 contract
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Borrowing Base Certificate. Within ten (10a) The Borrower shall provide the Administrative Agent with the following documents, in a form and detail reasonably satisfactory to Administrative Agent, within (i) fifteen (15) days of after the end of each calendar monthof the first month and the second month of each Fiscal Quarter of Holdings (or, the Borrowers shall deliver with respect to the Administrative Agent an updated month of August 2018, thirty (30) days after the end of such month) and (ii) thirty (30) days after the end of the third month of each Fiscal Quarter of Holdings, a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base, Excess Availability and Unrestricted Cash as of the last Business Day of the immediately preceding fiscal month, duly completed and executed by a Responsible Officer of a Borrower, together with all schedules required pursuant to the terms of the Borrowing Base Certificate duly completed (such certification, a “Monthly Borrowing Base Certificate”).
(b) At any time during the continuation of a Cash Dominion Period, the Borrower shall furnish the Administrative Agent with a Borrowing Base Certificate calculated as of the close of business on the last day of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day); provided that the delivery of Borrowing Base Certificates on a weekly basis shall continue for not less than four (4) consecutive weeks following the end of any such Cash Dominion Period.
(c) The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents.
(d) Upon at least ten (10) Business Days’ prior notice to the Borrowers (provided that such notice shall not be true required if an Event of Default has occurred and correct is continuing), the Administrative Agent may carry out investigations and reviews of each Loan Party’s property at the reasonable expense of the Borrower (including field audits conducted by the Administrative Agent) (“Field Examination”) and the Administrative Agent may carry out, at the Borrower’s expense, one (1) Field Examination in any period of 12 consecutive months (or two (2) Field Examinations in the case of the first 12 month period after the Effective Date; provided that the Administrative Agent may carry out, at the Borrower’s expense, (i) setting forth a calculation two (2) Field Examinations during any period of 12 consecutive months if Excess Availability has fallen below the Available Commitment as of Seasonal Amount during such date of deliveryperiod, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days Field Examinations during any period of 12 consecutive months if a Cash Dominion Period existed during such period; provided, further, that, (i) at any time during the issuance continuation of Investor Capital Calls to Investors (delivered to an Event of Default, the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to may carry out, at the related Investor Capital Contributions requested Borrower’s expense, Field Examinations as frequently as determined by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings in its reasonable discretion, and (ii) the Administrative Agent may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers carry out, at least one (1) Business Day its own expense, additional Field Examinations in advance of the effective date of such adjustment.its 5339129.14 86
Appears in 1 contract
Samples: Credit Agreement (eHealth, Inc.)
Borrowing Base Certificate. Within ten (10a) By 12:00 noon, New York City time (i) seven (7) Business Days after the Friday of each week and (ii) thirty (30) days of after the end of each calendar monthfiscal month (and on any other date on which the Agent reasonably requests), the Borrowers Borrower shall deliver furnish to the Administrative Agent an updated a certificate ("Borrowing Base Certificate Certificate") substantially in the form attached hereto as Exhibit D, certified by a Responsible Officer of each Borrower to be as true and correct (i) by a Designated Financial Officer, setting forth a calculation the Borrowing Base and the other information required therein as of the Available Commitment as Borrower's close of such date of delivery, and, if included in business on the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days Saturday of the issuance of Investor Capital Calls to Investors preceding week (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of the weekly Borrowing Base Certificates), or as of Borrower's close of business on the last day of each fiscal month (in the case of subsequent monthly Borrowing Base Certificates), in each case together with such other information with respect to the Inventory of the Borrower as the Agent may reasonably request. The weekly Borrowing Base Certificate may be prepared based upon a transfer from one existing PWM Investor to another existing PWM Investor good faith estimate by the Borrower of its Inventory.
(b) In the event of any dispute about the eligibility of any asset for inclusion in the Borrowing Base or from an existing PWM Investor to a new PWM Investorthe valuation thereof, unless such transfer will result the Agent's good faith judgment shall control.
(c) The Borrowing Base set forth in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered effective from and including the date such Borrowing Base Certificate is duly received by the Agent to but not including the date on which a subsequent Borrowing Base Certificate is duly received by the Agent, unless the Agent disputes the eligibility of any mandatory prepayment required asset for inclusion in the Borrowing Base or the valuation thereof by this Credit Agreement shall be madenotice of such dispute to the Borrower, in each casewhich case the value of such asset shall, prior at the discretion of the Borrower, either not be included in the Borrowing Base or be included in the Borrowing Base with a value reasonably acceptable to the effectiveness thereof); and Agent.
(ivd) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Each Borrowing Base Certificate shall be delivered accompanied by backup schedules showing the derivation thereof and any mandatory prepayment required by this Credit Agreement shall be made) containing such detail and otherwise, Exclusion Events such other and further information as the Agent may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably request from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmenttime.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) days of Borrower shall provide the Administrative Agent with the following documents in a form and detail reasonably satisfactory to Administrative Agent: as soon as possible after the end of each calendar month, fiscal month (but in any event within fifteen (15) Business Days after the Borrowers shall deliver to the Administrative Agent an updated end thereof) a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding fiscal month, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificates shall be computed in accordance with the requirements in respect of Borrowing Base Certificates required to be delivered during the continuance of a Cash Dominion Period and the Borrower shall continue to deliver Borrowing Base Certificates on such more frequent basis until the date that is 60 days after the date of such election.
(b) At any time during the occurrence and continuation of a Cash Dominion Period, the Borrower shall furnish a Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madecalculated as of the close of business on the last day of the immediately preceding fiscal week, in each case, prior to the effectiveness thereof); and (iv) no not later than five the third (53rd) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of Day after the end of each calendar month or such fiscal week.
(bc) The Borrower shall also cooperate with (and cause its Subsidiaries to cooperate with) the reduction Administrative Agent, in connection with updates to the Initial Inventory Appraisal that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (the “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base attributable to Inventory and the Administrative Agent may carry out, at the Borrower’s expense, one (1) Updated Inventory Appraisal in any Investor’s Investor Capital Commitment in accordance with the terms period of this Credit Agreement12 consecutive months; provided, however, that notwithstanding anything the foregoing limitations (x)(i) at any time on or after the date on which Excess Availability has been less than 15% of the Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Updated Inventory Appraisals in any period of 12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Updated Inventory Appraisals as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the contrary in this Credit Agreement or any other Loan Documentforegoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Updated Inventory Appraisal in any period of 12 consecutive months. The Borrower is not required shall furnish to monitor the Ratings Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of Included Investorsthe Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(d) The Administrative Agent may carry out investigations and reviews of each Loan Party’s property at the reasonable expense of the Borrower (including field audits conducted by the Administrative Agent) (“Field Examination”) and the Administrative Agent will monitor such Ratings and may adjust carry out, at the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least Borrower’s expense, one (1) Business Day Field Examination in advance any period of 12 consecutive months; provided, however, that notwithstanding the effective date of such adjustment.foregoing limitations,
Appears in 1 contract
Borrowing Base Certificate. Within (a) The Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender, on or prior to the 10th day after the last day of each fiscal month, a Borrowing Base Certificate as of the close of business on the last day of the applicable preceding fiscal month, which shall include, among other things, monthly cash flow details for the Eligible Portfolio Assets; provided that after the occurrence and during the continuance of an Event of Default, the Borrower shall deliver a Borrowing Base Certificate (as of the close of business on the last Business Day of the immediately preceding week) on or before the close of business of the third Business Day after the end of each week.
(b) The Borrower may deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender, concurrently with the relevant Borrowing Notice, a pro forma Borrowing Base Certificate as of the close of business on the date the Borrowing Notice under Section 2.05 was delivered, for the purposes of determining the Borrowing Base for such draw of Revolving Loans.
(c) No later than the later of (i) the next scheduled date of delivery of the Borrowing Base Certificate in accordance with Section 5.14(a) and (ii) ten (10) days Business Days after the Borrower obtains actual knowledge of the end incurrence of each calendar monthIndebtedness by 6 Brands or any Subsidiary of 6 Brands pursuant to Section 6.01(p), the Borrowers Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender a pro forma Borrowing Base Certificate showing the incurrence of such Indebtedness and any assets purchased with the proceeds thereof. Prior to delivery by the Borrower of the first Borrowing Base Certificate following delivery of financial statements pursuant to either Section 5.01(a)(i) or Section 5.01(b)(i) covering the fiscal quarter in which such Indebtedness was incurred, (i) the Administrative Agent shall be entitled to establish a Reserve in the amount of 110% of the principal amount of such Indebtedness (and following delivery of such Borrowing Base Certificate, no such Reserve shall be taken) and (ii) for the avoidance of doubt, any assets purchased with the proceeds of Indebtedness referenced in this Section 5.14(c) shall be considered in determining the Asset Value of the Equity Interests in 6 Brands.
(d) In connection with any transaction involving the purchase, Disposition or other change in the composition of Portfolio Assets that contribute more than 10% of the Borrowing Base, the Borrower shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified for delivery by a Responsible Officer of the Administrative Agent to each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of deliveryLender, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within later than three (3) Business Days of after the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary date of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’stransaction, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate as of the aggregate Investor Capital Commitmentsclose of business on the date of such transaction.
(e) After the effectiveness of Amendment No. 1, in which case such updated Borrowing Base Certificate shall no later than ten (10) Business Days after the Borrower obtains actual knowledge of any transaction by the Bebe Group that would be delivered and any mandatory prepayment required prohibited by this Credit Agreement shall be madeSection 6.01, Section 6.02, Section 6.03, Section 6.04, Section 6.05, and/or Section 6.06, in each case, prior without giving effect to any exceptions or “baskets” set forth therein, involving Indebtedness, payments or assets in excess of $10,000,000, the Borrower shall deliver written notice to the effectiveness thereof); Administrative Agent describing such transaction in reasonable detail. The Administrative Agent shall be entitled to request reasonable additional information, and (iv) no later than five (5) Business Days following until the occurrence delivery of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events Certificate incorporating an Asset Value for the Bebe Group Assets based on a Valuation Report that takes into account the effect of such month to equal 1% or more of aggregate Investor Capital Commitments (in which casetransaction, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust shall be entitled to establish a Reserve in its reasonable discretion to account for any reduction in the Borrowing Base Asset Value (if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1any) Business Day in advance of the effective date Bebe Group Assets as the result of such adjustmenttransaction.
Appears in 1 contract
Borrowing Base Certificate. Within ten Borrowers shall calculate Borrowing Base and Availability and deliver to Administrative Agent (10and Administrative Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate (a) no later than five (5) days of following the end last day of each calendar month, month during the Borrowers shall deliver to the Administrative Agent an updated term hereof (a “Payment Date Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation Certificate”), showing valuations as of the Available Commitment as close of such date business of deliverythe last day of the calendar month just ended, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (iib) within three (3) Business Days of any event or circumstance in which an Approved Financing has become a Zero Value Approved Financing, showing valuations as of the issuance of Investor Capital Calls to Investors date such Approved Financing became a Zero Value Approved Financing, (delivered to the c) within three (3) Business Days following any other demand by Administrative Agent along with a summary (which may be requested up to one (1) time per week), showing valuations as of such Investor Capital Calls and calculated after giving effect the date of demand, (d) on the date on which any Notice of Borrowing is delivered or as otherwise required pursuant to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sSection 4.1.1, Investor Capital Commitment (other than in the case showing valuations as of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or date not more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (aor two (2) any Exclusion Event and a Responsible Officer Business Days in respect of a Credit Party obtaining Fixed Rate Loan) earlier than the actual knowledge thereof so long date of Advance, (e) within three (3) Business Days after any Removal Date, or (f) upon Borrowers’ request for an Additional Collateral Event, showing valuations as of a date not more than five (5) Business Days prior to the actual inclusion of such Exclusion Event will result Approved Financing in a the Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Base. Each Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and include a updated Borrowing Base Certificate provided) within ten (10) days valuation of the end of each calendar month or (b) Approved Financings taking into account the reduction benefit of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything Permitted Interest Rate Hedge Agreement pursuant to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required a methodology to monitor the Ratings of Included Investors, and the be agreed among Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of time such adjustmentPermitted Interest Rate Hedge Agreement is entered into.
Appears in 1 contract
Samples: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Borrowing Base Certificate. "Within ten twenty-five (1025) days of after the end of each calendar month, a certificate as of the Borrowers shall deliver to end of the Administrative Agent an updated Borrowing Base Certificate immediately preceding month, substantially in the form of Exhibit J and certified by a an Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation as of the Available Commitment as date thereof (a "Borrowing Base Certificate")."
(m) Section 8.3 of the Credit Agreement is amended by deleting the last sentence of the second paragraph of such date section and replacing it with the following: "In the event that the Borrower or any Consolidated Subsidiary receive Net Cash Proceeds in excess of delivery, and, if included $1,000,000 in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, amount during any Fiscal Year ("Excess Proceeds") on a monthly basisaccount of Involuntary Dispositions, the transfer of Investor Capital Commitments from one existing PWM Investor Credit Parties shall, within the applicable Application Period, apply (or cause to another existing PWM Investor or from be applied) an existing PWM Investor amount equal to a new PWM Investor and such proceeds to (iix) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: make Eligible Reinvestments (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached including but not limited to the related Request for Borrowing repair or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days replacement of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iiiProperty) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (by) prepay the reduction of any Investor’s Investor Capital Commitment Loans (including by cash collateralizing L/C Obligations) in accordance with the terms of this Credit AgreementSection 2.3(b)(ii)(B); providedprovided that if the Borrower receives Excess Proceeds as a result of an Involuntary Disposition of Collateral, however, that notwithstanding anything and the Borrower does not otherwise apply such proceeds to the contrary in this Credit Agreement or any other Loan Documentmake Eligible Reinvestments, the Borrower shall apply an amount equal to the amount of such proceeds received in respect of such Collateral to prepay the Secured Obligations (as defined in the Security Agreement) (including by cash collateralizing letters of credit (but only after all outstanding loans under the same facility have been prepaid) or guaranty obligations) on a pro rata basis. Pending final application of any Excess Proceeds, the Credit Parties may apply such Excess Proceeds to temporarily reduce the Revolving Credit Loans or to make Investments in Cash Equivalents."
(n) Section 8.10 of the Credit Agreement is not required amended by adding the following sentences to monitor the Ratings end of Included Investorssuch section: "Without limiting the generality of the foregoing, and the Credit Parties shall cooperate with the Administrative Agent will monitor such Ratings and may adjust its representatives and/or subcontractors in the completion by June 30, 2003, at the Credit Parties' expense, of a field examination of the accounts receivable and inventory of the Credit Parties (the "Audit"). The parties acknowledge and agree that the Borrowing Base if will be subject to modification after the Rating of any Rated Included Investor is downgraded by providing notice to Sixth Amendment Effective Date based upon the Borrowers at least one (1) Business Day in advance results of the effective date Audit, and that the Borrowing Base shall automatically and immediately be adjusted based upon the results thereof (and the Borrowing Base Certificate shall be adjusted accordingly)."
(o) Section 9.1 of the Credit Agreement is hereby amended by deleting such adjustment.section in its entirety and replacing it with the following:
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Borrowing Base Certificate. Within ten (10a) days The Borrowers shall provide the Administrative Agent and each Lender with a Borrowing Base Certificate, certified as being true and correct by the Borrowers' chief financial officer, controller or any other officer acceptable to the Administrative Agent, on the seventh Business Day following the last day of each fiscal month, or more frequently if requested by the Administrative Agent. Each subsequent Borrowing Base Certificate shall be based upon, with respect to Receivables and Inventory, information as of the end last day of the immediately preceding fiscal month. Each such Borrowing Base Certificate shall set forth Borrowing Base calculations since the date of the last prior Borrowing Base Certificate and shall include a monthly summary aging of Receivables, a monthly schedule of each calendar monthcategory of Eligible Inventory and all Eligible Inventory that has become ineligible, specifying the applicable category of ineligibility and such other information as the Administrative Agent may request from time to time.
(b) At least once each fiscal month (and more often if so requested by the Administrative Agent), the Borrowers shall deliver provide the Administrative Agent and the Lenders with a report (a "Monthly Report"), dated the last day of such fiscal month, and certified by the Borrowers' chief financial officer, controller or any other officer acceptable to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower Agent, which Monthly Report shall include the following information for the Borrowers, and shall cover the period since the last prior Monthly Report delivered to be true and correct the Administrative Agent:
(i) setting forth a calculation A summary aging of Receivables and Eligible Receivables specify- ing the Available Commitment as of such date of delivery, and, if included in Receivables and Eligible Receivables created or acquired during the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and prior month;
(ii) certifying A schedule of all Eligible Inventory that no Default has become ineligible, specifying the applicable category of ineligibility;
(iii) A list of all Receivables, Inventory, Equipment and Real Property which do not satisfy any warranty, representation or Event of Default existscovenant contained in this Agreement or any other Loan Document and an explanation thereof;
(iv) A schedule listing all material disputes and claims arising, or specifying claims, offsets or counterclaims asserted with respect to, Receivables, any such Default material delays or Event expected delays in the Borrowers' performance of Defaultany of its obligations to any account debtor, and all adverse information relating to the financial condition of any account debtor which may reasonably be expected to impair the collectability of a material portion of the Receivables;
(v) An aging of accounts payable, if so requested by any Lender; providedand
(vi) A list of all new locations, howeveroffices, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with or places of business opened by any new Borrowing Borrower or request for Letter at which any Borrower has located any of Credit (the Collateral, its operations, assets, property or books and records, or to which it has relocated its headquarters, and a description of the Collateral or other property located thereon, and a list of any locations, offices or places of business closed or abandoned by any Borrower. Each fiscal month's Monthly Report shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within twenty-five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (1025) days of after the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentmonth.
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Borrowing Base Certificate. Within ten As soon as available but in any event on or prior to the 15th calendar day after the later of (10i) days of the end last day of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor month and (ii) certifying that no Default the last day of each retail month (based on the Borrower Agent’s 52/53 week year end (the period ending on such later date, a “Fiscal Month”)) (or Event more frequently as the Borrower Agent may elect, so long as the frequency of Default existsdelivery is maintained by the Borrower Agent for the immediately following 60 day period), or specifying any such Default or Event of Default; provided, however, that such a Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance close of Investor Capital Calls to Investors business on the last day of the immediately preceding fiscal month (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than or in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in voluntary delivery of a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate at the election of the aggregate Investor Capital CommitmentsBorrower Agent’s, a subsequent date), together with such supporting information in connection therewith as the Administrative Agent may reasonably request, which case such updated may include, without limitation, (A) Inventory reports by category and location, together with a reconciliation to the corresponding Borrowing Base Certificate, (B) a reasonably detailed calculation of Eligible Inventory, (C) a reconciliation of the Loan Parties’ Inventory between the amounts shown in the Borrower Agent’s stock ledger and any Inventory reports delivered pursuant to clause (A) above, (D) a reasonably detailed calculation of Eligible Trade Receivables and Eligible Credit Card Receivables, and (E) a reasonably detailed aging of the Loan Parties’ Accounts and a reconciliation to the corresponding Borrowing Base Certificate; provided that (1) upon the occurrence and during the continuance of a Cash Dominion Event, the Borrower Agent shall deliver a Borrowing Base Certificate and such supporting information as is reasonably practicable to provide on a weekly basis on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and (2) any Borrowing Base Certificate delivered other than with respect to month’s end may be based on such estimates by the Borrower Agent of shrink and other amounts as the Borrower Agent may deem necessary; provided, further, that a revised Borrowing Base Certificate based on the Borrowing Base Certificate most recently delivered shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within five (5) Business Days following after the occurrence of (a) any Exclusion Event and a Responsible Officer consummation of a Credit sale or other disposition (or merger, consolidation or amalgamation that constitutes a sale or disposition) of any Capital Stock of a Loan Party obtaining actual knowledge thereof so long to any Person other than a Loan Party that results in the disposition of Revolving Facility First Lien Collateral with an aggregate value in excess of $20,000,000, together with such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and reasonably requested by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.Agent; and
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Borrowing Base Certificate. Within ten Borrower may borrow an aggregate principal amount , up to the loan amount equal to the sum of the following (10the “Borrowing Base”):
(i) Eighty-five percent (85%) of domestic Accounts Receivable aged ninety (90) days or less; plus
(ii) Thirty-five percent (35%) of the lesser of $1,000,000.00 or Borrower’s foreign receivables; plus
(iii) Twenty-five percent (25%) of the value of the raw materials Inventory. Borrower to submit to SunTrust each month on or before the 15th of each month Certificate in the form acceptable to SunTrust setting forth the total amounts of items (i) through (iii) comprising the Borrowing Base as of the end of each calendar the prior month. As an Addendum to the certificate, Borrower shall include an Aging of Accounts Receivable in the form and substance satisfactory to SunTrust. Based on such Certificate, SunTrust shall adjust the Borrowing Base as of the 15th of the month. If the Borrowing Base exceeds the then outstanding aggregate principal amount of the Note (the “excess amount”), the Borrowers Borrower shall deliver to repay or prepay the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) Excess Amount within three (3) Business Days days after demand from SunTrust. For purposes of calculating the issuance Borrowing Base, Inventory and Accounts Receivable shall include, without limitation, inventory and accounts receivable of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sApplied Optical Systems, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM InvestorInc., unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCentric Solutions, in which case such updated Borrowing Base Certificate shall be delivered LLC and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence other subsidiary or other entity accounts of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms GAAP would be consolidated with those of this Credit Agreement; providedBorrower in its consolidated financial statements (collectively, however, that notwithstanding “ Consolidated Subsidiaries”) Notwithstanding anything to the contrary in this Credit the Commercial Note dated August 30, 2013 or the Security Agreement dated April 30, 2010, SunTrust consents to any merger or any other Loan Documentconsolidation of any wholly- owned or majority owned subsidiary of Borrower into Borrower, the provided that Borrower is not required the surviving entity. Additionally, Borrower agrees to monitor cooperate with SunTrust should SunTrust, at any time during the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance term of the effective date of such adjustmentCommercial Note, deem it necessary, in SunTrust’s sole determination, to perfect its lien in the Collateral against the Consolidated Subsidiaries.
Appears in 1 contract
Borrowing Base Certificate. Within ten A Borrowing Base Certificate substantially in the form of Exhibit I as of the date required to be delivered or so requested, in each case with supporting documentation (10including, without limitation, the documentation described in Schedule 1 to Exhibit I) days shall be furnished to the Administrative Agent: (i) as soon as available and in any event prior to the Initial Extension of Credit, (ii)(A) after the Initial Extension of Credit, on or before the 15th day following the end of each fiscal month, which monthly Borrowing Base Certificate shall reflect the Inventory updated as of the end of each calendar monthsuch month and (B) in addition to such monthly Borrowing Base Certificates, (x) upon the Borrowers shall deliver to occurrence and continuance of an Event of Default or if Availability is less than $100,000,000, on or before the Administrative Agent an updated third Business Day following the end of each week, which weekly Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation shall reflect the Accounts updated as of the Available Commitment as of immediately preceding Thursday; provided that if Availability is equal to or greater than $125,000,000 for three consecutive Business Days, such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered pursuant to clause (ii)(A) herein and (y) at the option of the Borrower, weekly updates of Accounts, certified by a Responsible Officer, and (iii) if requested by the Administrative Agent at any mandatory prepayment required by this Credit Agreement shall be madeother time when the Administrative Agent reasonably believe that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably available after such request, in each casecase with supporting documentation as the Lenders may reasonably request (including without limitation, prior the documentation described on Schedule 1 to the effectiveness thereof); Exhibit I) and (iv) no later than five pursuant to Section 5.02(g)(iv). Documents required to be delivered pursuant to Section 5.01 or this Section 5.03 (5to the extent any such documents are included in materials otherwise filed with the SEC) Business Days following the occurrence of (a) any Exclusion Event may be delivered electronically and a Responsible Officer of a Credit Party obtaining actual knowledge thereof if so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which casedelivered, such updated Borrowing Base Certificate shall be deemed to have been delivered and any mandatory prepayment required on the date of receipt by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor irrespective of when such Ratings document or materials are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website (the “Informational Website”), if any, to which each Lender and may adjust the Borrowing Base if Agents have unrestricted access (whether a commercial, third-party website or whether sponsored by the Rating Administrative Agent); provided that the accommodation provided by the foregoing sentence shall not impair the right of the Administrative Agent to request and receive from the Loan Parties physical delivery of any Rated Included Investor is downgraded by providing notice specific information provided for in Section 5.01 or this Section 5.03. Other than with respect to the Borrowers at least one (1) Business Day in advance bad faith, gross negligence or willful misconduct on the part of the effective date Lead Arrangers, Agents or Lenders, none of such adjustmentthe Lead Arrangers, Agents or the Lenders shall have any liability to any Loan Party, each other or any of their respective Affiliates associated with establishing and maintaining the security and confidentiality of the Informational Website and the information posted thereto.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Borrowing Base Certificate. Within Furnish to the Administrative Agent, no later than (i) four (4) Business Days after the end of each week (other than during the calendar week in which the 25th day of December occurs), a completed Borrowing Base Certificate as of the last day of the immediately preceding one week period, and (ii) if requested by the Administrative Agent, after consultation with the Initial Lenders or at the direction of at least two of the Initial Lenders, at any other time when the Administrative Agent, reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably available but in no event later than seven (7) Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base as of the date so requested, in each case with supporting documentation and additional reports with respect to the Borrowing Base as the Administrative Agent, after consultation with the Initial Lenders, may reasonably request or as required by at least two of the Initial Lenders. From and after the execution of the Borrowing Base Addendum, the PP&E Component of the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the financial advisors to the Administrative Agent's counsel or representatives of the Initial Lenders, (ii) concurrent with the sale of any assets constituting part of the PP&E Component, (iii) in the event such assets are idled for any reason other than routine maintenance or repairs for a period in excess of twenty-one (21) consecutive days or, following any such closure, in the event any such idled assets resume operations for a period in excess of ten (10) days consecutive days, or (iv) the value of such assets is otherwise impaired, in the Administrative Agent's sole discretion, after consultation with the Initial Lenders, or as determined by at least two of the end Initial Lenders. From and after the execution of each calendar monththe Borrowing Base Addendum, the Borrowers components of the Borrowing Base consisting of inventory and receivables shall deliver be subject to a quarterly audit by the financial advisors to the Administrative Agent Agent's counsel or by representatives of an updated Borrowing Base Certificate certified Initial Lender, if required by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation the Administrative Agent, after consultation with the Initial Lenders or if required by at least two of the Available Commitment as Initial Lenders. The components of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if consisting of (x) inventory shall be updated monthly as of the Rating close of any Rated Included Investor is downgraded by providing notice to business on the Borrowers at least one (1) last Business Day in advance of each month, from and after the execution of delivery of the effective date Borrowing Base Addendum, and (y) receivables shall be updated weekly as of such adjustmentthe close of business on the last Business Day of each week.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Hayes Lemmerz International Inc)
Borrowing Base Certificate. Within ten (10i) Monthly, not later than twenty (20) days after the month most recently ended, a certificate signed by the chief financial officer of Borrower Agent substantially in the form of 80 Exhibit I (a “Borrowing Base Certificate”), which among other things details the Eligible Credit Card Receivables and Eligible Inventory, calculates the Borrowing Base, contains a detailed calculation of Excess Availability and reflects all sales, collections, and debit and credit adjustments, as of the last day of the preceding month, which shall be prepared by or under the supervision of the chief financial officer of Borrower Agent and certified by such officer; provided that, upon the occurrence of an Increased Reporting Event, and continuing on a weekly basis until the end of each calendar monththe corresponding Increased Reporting Period, the Borrowers Borrower Agent shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified weekly, on the third Business Day of each calendar week, as of the last Business Day of the preceding calendar week.
(ii) At the discretion of Agent, for the purpose of preparing and delivering the Borrowing Base Certificate in accordance with this Section 7.11(e), Borrower Agent shall (i) not later than 3 Business Days prior to the Borrowing Base Certificate delivery date referenced in Section 7.11(e)(i) above, simultaneously deliver to Agent and Collateral Services, Inc., a Delaware corporation, or a third party designee acceptable to Agent (in each case, a “Collateral Service Agent”), all of the data necessary to prepare the report referenced in Section 7.11(e)(i) and all of the reports required in Sections 7.11(f) and 7.11(g), (ii) permit Collateral Service Agent to process and analyze the Loan Parties’ data and produce and send to Agent and Borrower Agent a Borrowing Base Certificate and a list of ineligible Credit Card Processor Accounts and Inventory (the “Ineligible List”) for the applicable time period intervals required under this Section 7.11(e). After Borrower Agent’s receipt and review of the Borrowing Base Certificate and Ineligible List produced by Collateral Service Agent, Borrower Agent shall forward to Agent the Borrowing Base Certificate and Ineligible List signed by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentAgent.
Appears in 1 contract
Samples: Credit Agreement (Stitch Fix, Inc.)
Borrowing Base Certificate. Within ten (10i) As soon as available, but in any event within twenty (20) days after the end of each month, a Borrowing Base Certificate, together with a Back-Log Spreadsheet and a Take-Out Spreadsheet, providing, as of the end of each calendar the prior month, (A) megawatts installed, (B) megawatts added, (C) net megawatts backlog, (D) megawatts terminated, (E) the Borrowers Borrowing Base, (F) the NYGB Borrowing Base, (G) the Revolving Exposure of NYGB and of each other Lender, (H) the NYGB Borrowing Base Availability, (I) the Total Outstandings, (J) the Unencumbered Liquidity, (K) any contracts that are ineligible for Tranching under any open Tax Equity Partnership (including the number, face value and reasons for rejection) and (L) such other supporting information as reasonably requested by the Administrative Agent, the Collateral Agent or the Lenders, each prepared as at the end of such month, duly certified by a Responsible Officer that is the chief executive officer, chief financial officer, treasurer or controller of the Borrowers. Notwithstanding the foregoing, in the event of a Borrowing Base Deficiency, for the period during which the Borrowing Base Deficiency exists, the Loan Parties shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basisAgent, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor Collateral Agent and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that the Lenders such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); on a bi-weekly basis.
(ii) within three Within twenty (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (1020) days of after the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance month, together with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if Certificate delivered pursuant to Section 6.02(m)(i) above, or more frequently as requested by the Rating Administrative Agent, the Collateral Agent or the Required Lenders, (A) the monthly aging of any Rated Included Investor is downgraded by providing notice the accounts receivable and accounts payable of the Loan Parties, (B) an aged listing of accounts related to the Borrowers at least one Eligible Hawaii Tax Credit Receivables, the Eligible Customer Upfront Payment Receivables, the Eligible Trade Accounts and the Eligible Project Back-Log and (1C) Business Day in advance of the effective date of such adjustmentan Inventory report.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Borrowing Base Certificate. Within ten (10a) By 12:00 noon, New York City time (i) seven (7) Business Days after the Friday of each week and (ii) thirty (30) days of after the end of each calendar monthfiscal month (and on any other date on which the Agent reasonably requests), the Borrowers Borrower shall deliver furnish to the Administrative Agent an updated a certificate ("Borrowing Base Certificate Certificate") substantially in the form attached hereto as Exhibit H, certified by a Responsible Officer of each Borrower to be as true and correct (i) by a Designated Financial Officer, setting forth a calculation the Borrowing Base and the other information required therein as of the Available Commitment as Borrower's close of such date of delivery, and, if included in business on the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days Saturday of the issuance of Investor Capital Calls to Investors preceding week (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of the weekly Borrowing Base Certificates), or as of Borrower's close of business on the last day of each fiscal month (in the case of subsequent monthly Borrowing Base Certificates), in each case together with such other information with respect to the Inventory of the Borrower as the Agent may reasonably request. The weekly Borrowing Base Certificate may be prepared based upon a transfer from one existing PWM Investor to another existing PWM Investor good faith estimate by the Borrower of its Inventory.
(b) In the event of any dispute about the eligibility of any asset for inclusion in the Borrowing Base or from an existing PWM Investor to a new PWM Investorthe valuation thereof, unless such transfer will result the Agent's good faith judgment shall control.
(c) The Borrowing Base set forth in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered effective from and including the date such Borrowing Base Certificate is duly received by the Agent to but not including the date on which a subsequent Borrowing Base Certificate is duly received by the Agent, unless the Agent disputes the eligibility of any mandatory prepayment required asset for inclusion in the Borrowing Base or the valuation thereof by this Credit Agreement shall be madenotice of such dispute to the Borrower, in each casewhich case the value of such asset shall, prior at the discretion of the Borrower, either not be included in the Borrowing Base or be included in the Borrowing Base with a value reasonably acceptable to the effectiveness thereof); and Agent.
(ivd) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Each Borrowing Base Certificate shall be delivered accompanied by backup schedules showing the derivation thereof and any mandatory prepayment required by this Credit Agreement shall be made) containing such detail and otherwise, Exclusion Events such other and further information as the Agent may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably request from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmenttime.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10) days of On the end Closing Date and no later than the 25th day of each calendar monthMay and November thereafter until payment in full of all Loans outstanding hereunder and all other amounts payable to the Lenders and the Agent under the Notes and other Loan Documents, the Borrowers Company shall deliver to the Administrative Agent an updated a Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in Agent relating to the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Defaultthen most recently ended six-month period; provided, however, that in addition to such regular certificates, the Company shall also deliver Borrowing Base Certificates when required, pursuant to subsection 2.4B(ii)(1) or 2.10B(ii)(1). Each Borrowing Base Certificate shall replace and supersede for all purposes of this Agreement the Borrowing Base Certificate then most recently delivered, and shall be based on the then most current Approved Appraisals. Such Borrowing Base Certificate shall (1) state each component of Borrowing Base Collateral then subject to perfected Liens of the Security Agreements, (2) state the portion of the Borrowing Base established by each component Borrowing Base Collateral, (3) state the Borrowing Base by aggregating each of the values stated pursuant to the preceding clause (2), and (4) state the then outstanding principal amount of the Loans. The Borrowing Base Certificate shall (A) certify that none of the Borrowing Base Collateral included in the calculation of the Borrowing Base is subject to an Event of Loss, Event of Damage, Repairable Event or Adjustment Event or, if any of such Borrowing Base Collateral is subject to an Event of Loss, Event of Damage, Repairable Damage or Adjustment Event, such Borrowing Base Certificate will be delivered more frequently: (i) in connection with shall contain the relevant exclusions for any new such Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect Base Collateral subject to such new Event of Loss, Event of Damage, Repairable Damage or Adjustment Event as required by subsections 2.4B(ii)(1) and 2.10A hereof, (B) certify that no Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sBase Deficiency then exists or, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in if a Borrowing Base deficiency or cause all transfers for such month Deficiency then exists, the amount thereof, and (C) certify that the portion of the Borrowing Base attributable to equal 1% or more Rotables stated in the Borrowing Base Certificate does not exceed thirty five percent, rounded to the nearest whole percent (35%), of the aggregate Investor Capital CommitmentsBorrowing Base stated in such certificate or that, if the portion of the Borrowing Base attributable to the Rotables does exceed thirty five percent, rounded to the nearest whole percent (35%), of the aggregate Borrowing Base, the portion of the Borrowing Base attributable to the Rotables in which case such updated certificate for purposes of calculating the Borrowing Base excludes such excess amount. In determining the book value of Rotables in any Borrowing Base Certificate, the Company shall use its normal accounting procedures except to the extent that the timing of such procedures may be shortened pursuant to subsection 2.4B(ii)(1)(c). The Borrowing Base Certificate shall be delivered certified to be true and any mandatory prepayment required accurate by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated the Company. Notwithstanding any Borrowing Base Certificate shall be delivered by the Company, in the event of any dispute between the Company and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days the Agent regarding the then outstanding principal amount of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan DocumentLoans, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance records of the effective date of Agent shall determine such adjustmentoutstanding principal amounts, absent manifest error.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) The Borrower shall provide the Administrative Agent and the FILO Agent within fifteen (15) days of after the end thereof after the end of each calendar month, fiscal month of the Borrowers shall deliver to the Administrative Agent an updated Borrower with a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability and, to the extent FILO Loan is outstanding, of the FILO Borrowing Base, in each case, as of the last Business Day of the immediately preceding fiscal month of the Borrower, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements in respect of this Credit AgreementBorrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis for the subsequent four-week period; provided further that at any time after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent and the FILO Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base and, to the extent FILO Loan is outstanding, of the FILO Borrowing Base, on a more frequent basis as the Administrative Agent or the FILO Agent may direct.
(b) At any time after the occurrence and during the continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day): provided that after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent and the FILO Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base and, to the extent FILO Loan is outstanding, of the FILO Borrowing Base, on a more frequent basis as the Administrative Agent or the FILO Agent may direct.
(c) Subject to Section 11.15, the Administrative Agent may carry out, at the Borrower’s reasonable expense, two (2) updates to the Initial Inventory Appraisal that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent and, to the extent FILO Loan is outstanding, the FILO Agent (provided that appraisals from third-party appraisers most recently used by the Administrative Agent prior to the Amendment No. 5 Effective Date shall be deemed to be acceptable to the FILO Agent) (each, an “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base and the FILO Borrowing Base attributable to Inventory in any period of 12 consecutive months; provided, however, that notwithstanding anything the foregoing limitations (i) at any time on or after the date on which Excess Availability has been less than 30% of the Maximum Credit (without giving effect to the contrary in this Credit Agreement or any other Loan DocumentFILO Reserve) for five (5) consecutive Business Days, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings may carry out, at the Borrower’s expense, three (3) Updated Inventory Appraisals in any period of twelve (12) consecutive months, and (ii) at any time during the continuation of an Event of Default, the Administrative Agent may adjust carry out, at the Borrowing Base if Borrower’s reasonable expense, Updated Inventory Appraisals as frequently as determined by the Rating of any Rated Included Investor is downgraded by providing notice to Administrative Agent in its reasonable discretion. In addition, the Borrowers Administrative Agent may carry out, at least the Lenders’ expense, one (1) Business Day additional Updated Inventory Appraisal in advance any period of twelve (12) consecutive months which includes the first day of a Cash Dominion Period. The Borrower shall cooperate with (and cause the Restricted Subsidiaries to cooperate with) the Administrative Agent, in connection with any such Updated Inventory Appraisals. The Borrower shall furnish to the Administrative Agent and the FILO Agent any information that the Administrative Agent or the FILO Agent may reasonably request regarding the determination and calculation of the effective Borrowing Base and the FILO Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(d) Subject to Section 11.15, the Administrative Agent may carry out, at the Borrower’s reasonable expense, two (2) investigations and reviews of each Loan Party’s property (including a field audit conducted by the Administrative Agent) (each, a “Field Examination”) in any period of twelve (12) consecutive months; provided, however, that notwithstanding the foregoing limitations, (x)(i) at any time on or after the date on which Excess Availability has been less than 30% of the Maximum Credit (without giving effect to the FILO Reserve), in each case, for five (5) consecutive Business Days or there is a material increase in the amount of Inventory that does not constitute Eligible Inventory (as determined by the Administrative Agent) based on the most recent Field Examination, the Administrative Agent may carry out, at the Borrower’s reasonable expense, three (3) Field Examinations in any period of twelve (12) consecutive months, and (ii) at any time during the continuation of an Event of Default, the Administrative Agent may carry out, at the Borrower’s reasonable expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any period of twelve (12) consecutive months which includes the first day of a Cash Dominion Period. The Borrower shall furnish to the Administrative Agent and the FILO Agent any information that the Administrative Agent or the FILO Agent may reasonably request regarding the determination and calculation of the Borrowing Base and the FILO Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(e) The Borrower shall provide the Administrative Agent and the FILO Agent as soon as possible after the end of each fiscal month (but in any event within fifteen (15) days after the end thereof), in each case as of the close of business on the last day of the immediately preceding fiscal month, such adjustmentsupporting information with respect to the Collateral in the Borrowing Base and the FILO Borrowing Base as reasonably requested by the Administrative Agent and/or the FILO Agent in such detail as is satisfactory to the Administrative Agent and the FILO Agent in their Permitted Discretion.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10) days Following the execution and delivery of the end Borrowing Base Amendment, furnish to the Agents and the Collateral Agent as soon as available and in any event (i) on or before the last Business Day of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated a monthly Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation as of the Available Commitment as last day of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor immediately preceding month and (ii) certifying if requested by either Agent (in consultation with the other Agent) or Collateral Agent at any other time when either Agent (in consultation with the other Agent) or Collateral Agent reasonably believes that no Default or Event of Default existsthe then existing Borrowing Base Certificate is materially inaccurate, or specifying at any such Default or time following the occurrence and continuation of an Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within soon as reasonably available but in no event later than three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of after such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’srequest, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate showing the Borrowing Base as of the aggregate Investor Capital Commitmentsdate so requested, in which each case such updated with supporting documentation and additional reports with respect to the Borrowing Base Certificate as either Agent (in consultation with the other Agent) or Collateral Agent shall be delivered reasonably request.
5. Section 5.09 of the Credit Agreement is hereby amended by deleting the number "30" appearing therein and any mandatory prepayment required inserting in lieu thereof the number "45".
6. The Credit Agreement is hereby further amended by adding a new "Exhibit H" in the form attached hereto as Exhibit A.
7. This Amendment shall not become effective until the date (the "Effective Date") on which this Amendment shall have been executed by the Borrower, the Guarantors and the Initial Lenders, and the Agents shall have received evidence satisfactory to it of such execution.
8. Except to the extent hereby amended, the Credit Agreement and each of the Loan Documents remain in full force and effect and are hereby ratified and affirmed.
9. The Borrower agrees that its obligations set forth in Section 10.05 of the Credit Agreement shall be made, in each case, prior extend to the effectiveness thereof); preparation, execution and (iv) no later than five (5) Business Days following delivery of this Amendment, including the occurrence reasonable fees and disbursements of special counsel to the Agents.
10. This Amendment shall be limited precisely as written and shall not be deemed (a) to be a consent granted pursuant to, or a waiver or modification of, any Exclusion Event and a Responsible Officer other term or condition of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this the Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days or any of the end of each calendar month instruments or agreements referred to therein or (b) to prejudice any right or rights which the reduction of any Investor’s Investor Capital Commitment Agents or the Lenders may now have or have in accordance the future under or in connection with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any of the instruments or agreements referred to therein. Whenever the Credit Agreement is referred to in the Credit Agreement or any of the instruments, agreements or other Loan Documentdocuments or papers executed or delivered in connection therewith, such reference shall be deemed to mean the Credit Agreement as modified by this Amendment.
11. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.
12. This Amendment shall be governed by, and construed in accordance with, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance laws of the effective date State of such adjustmentNew York.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Borrowing Base Certificate. Within ten On the Effective Date, (10ii) days unless clause (iii) below applies, not later than 5:00 P.M. (New York City time) on or before the 20th day (or, solely with respect to the first three fiscal months of the end Company after the Effective Date, the 25th day) of each calendar monthfiscal month thereafter, (iii) during any period in which a Weekly Borrowing Base Period is in effect, not later than 5:00 P.M. (New York City time) on or before the Borrowers third Business Day of each week, (iv) at the time of the consummation of any Asset Sale (other than a sale of Inventory in the ordinary course of business) involving Eligible Accounts, Eligible Inventory, and/or Eligible Machinery and Equipment and/or Eligible Real Property with an aggregate value in excess of $25,000,000 and (v) within five Business Days after any Recovery Event involving Eligible Inventory, Eligible Machinery and Equipment and/or Eligible Real Property with an aggregate value of $25,000,000 or more, a borrowing base certificate setting forth each Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit O (each, a “Borrowing Base Certificate”), which shall deliver to be prepared (A) as of April 30, 2015 in the Administrative Agent an updated case of the initial Borrowing Base Certificate certified by a Responsible Officer and (B) as of the last day of the preceding fiscal month of the Company in the case of each Borrower to be true and correct subsequent Borrowing Base Certificate (i) setting forth a calculation of the Available Commitment as of such date of delivery, andor, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be is delivered more frequently: frequently than monthly, as of the last Business Day of the week preceding such delivery); provided that any Borrowing Base Certificate delivered pursuant to preceding clauses (iiv) in connection with any new Borrowing or request for Letter of Credit and (and v) shall be attached prepared on a pro forma basis to the related Request for Borrowing include or Request for Letter of Creditexclude, as applicable, any Eligible Accounts, Eligible Inventory, Eligible Machinery and shall give pro forma effect Equipment or Eligible Real Property the subject of any such event. Notwithstanding the foregoing, (w) the Company may, at any time, provide (or shall, at the request of the Administrative Agent, provide on the date of such request) a Borrowing Base Certificate updating the Borrowing Base with respect to Eligible Cash and Cash Equivalents as of the date of delivery of such Borrowing Base Certificate, (x) the Company may, within 10 Business Days of any Real Property becoming Eligible Real Property, update the Borrowing Base with respect to such new Borrowing or such new Letter of Credit); Eligible Real Property, (iiy) the Company may, within three (3) 10 Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer execution of any Included Investor’sBelgian law register pledge agreement and perfection of the Liens granted thereunder under Belgian law, Investor Capital Commitment update the Borrowing Base with respect to Eligible In-Transit Inventory in-transit to Belgium and Eligible Inventory within Belgium, and (other than in z) the case Company may, up to four times per calendar year, provide a second Borrowing Base Certificate during a fiscal month updating the Borrowing Base as of a transfer from one existing PWM Investor the third Business Day preceding such delivery; provided that if the Company elects to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in provide a Borrowing Base deficiency or cause all transfers Certificate more frequently than once during a fiscal month, that frequency must be continued for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated next 30 days. Each Borrowing Base Certificate shall be delivered and any mandatory prepayment required by pursuant to this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long include such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably requested from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and time by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentAgent.
Appears in 1 contract
Samples: Abl Credit Agreement (Tesla, Inc.)
Borrowing Base Certificate. Within ten (10a) days of Borrower shall provide the Administrative Agent with the following documents in a form and detail reasonably satisfactory to Administrative Agent as soon as possible after the end of each calendar month, month (but in any event within fifteen (15) Business Days after the Borrowers shall deliver end thereof) for prompt further distribution to the Administrative Agent an updated each Lender: a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding calendar month, duly completed and executed by a Responsible Officer of each the Borrower, together with all schedules required pursuant to the terms of the Borrowing Base Certificate duly completed (such certification, a “Monthly Borrowing Base Certificate”); provided that the Borrower may elect, at its option, to deliver more frequent Borrowing Base Certificates, in which case such Borrowing Base Certificates shall be computed in accordance with the requirements in respect of Borrowing Base Certificates required to be true delivered during the continuance of a Weekly Monitoring Event and correct (i) setting forth the Borrower shall continue to deliver Borrowing Base Certificates on a calculation weekly basis until January 15th of the Available Commitment next succeeding calendar year.
(b) At any time during the occurrence and continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of such date the close of deliverybusiness on the last day of the immediately preceding calendar week, andon Wednesday of each week (or, if included Wednesday is not a Business Day, on the next succeeding Business Day).
(c) The Borrower shall also cooperate with (and cause its Subsidiaries to cooperate with) the Administrative Agent, in connection with appraisals of Inventory that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (each, an “Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor Base attributable to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of DefaultInventory; provided, however, that such Borrowing Base Certificate will be delivered more frequently: the Administrative Agent may carry out, at the Borrower’s expense, (x) (i) in connection with one (1) Inventory Appraisal during any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credittwelve month period, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three at any time on or after the date on which Excess Availability has been less than the greater of (3A) Business Days $55,000,000 and (B) 20% of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madeMaximum Credit, in each case, prior to the effectiveness thereof); and (iv) no later than for five (5) consecutive Business Days following Days, the occurrence of Administrative Agent may carry out, at the Borrower’s expense, two (a2) Inventory Appraisals in any Exclusion Event twelve month period, and a Responsible Officer (iii) at any time during the continuation of a Credit Party obtaining actual knowledge thereof so long Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Inventory Appraisals as such Exclusion Event will result frequently as determined by the Administrative Agent in a its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Inventory Appraisal in any twelve month period. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base deficiency including correct and complete copies of any invoices, underlying agreements, instruments or cause other documents and the identity of all Exclusion Events for such month Account Debtors in respect of Accounts referred to equal 1% or more therein.
(d) The Administrative Agent may carry out investigations and reviews of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days each Loan Party’s property at the reasonable expense of the end of each calendar month or Borrower (bincluding field audits conducted by the Administrative Agent) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement(“Field Examination”); provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust carry out, at the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least Borrower’s expense, (x) (i) one (1) Business Day Field Examination in advance any twelve month period, (ii) at any time on or after the date on which Excess Availability has been less than the greater of (A) $55,000,000 and (B) 20% of the effective date Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Field Examinations in any twelve month period, and (iii) at any time during the continuation of such adjustmenta Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any calendar year. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Borrowing Base Certificate. Within ten Each Borrower shall submit to Lender a ---------------------------- Borrowing Base Certificate, properly completed, (10i) days of not later than the end fifth day of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated which Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true shall state the Facility A Borrowing Base and correct (i) setting forth a calculation the Facility B Borrowing Base as of the Available Commitment as last day of such date of deliverythe immediately preceding month, andand shall be obligated to submit Borrowing Base Certificates more frequently (if so requested by Lender) at any time that a Default, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default or Out-of-Formula Condition exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3on each date that a Borrower submits to Lender a notice of intention to borrow pursuant to the provisions of Section 4.1.1(i) Business Days hereof, which Borrowing Base Certificate shall state the amount of the issuance Facility A Borrowing Base and the Facility B Borrowing Base as of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary close of business of the Business Day immediately preceding the date of such Investor Capital Calls notice; and calculated (iii) on each date that a Borrower requests Lender to release any Collateral pursuant to Section 4.5.1 hereof, which shall state the amount of the Facility A Borrowing Base and Facility B Borrowing Base after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following release. On each date that a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in Borrower submits a Borrowing Base deficiency or cause Certificate to Lender, each Borrower shall be deemed to have warranted and represented to Lender that, to the best of such Borrower's knowledge, the information contained therein is true and correct and that all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, A&D Loans and Hypothecation Loans included in which case such updated Borrowing Base Certificate shall be delivered the calculations set forth therein constitute Eligible Loans and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, Hypothecation Borrowers and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the A&D Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentincluded therein are Eligible Borrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (Litchfield Financial Corp /Ma)
Borrowing Base Certificate. Within ten (10A) By 12:00 p.m. (Chicago, Illinois time) (i) three Business Days after the Saturday of each week and (ii) 25 days of after the end of each calendar monthfiscal month (and on any other date on which the Agent reasonably requests), the Borrowers shall deliver furnish to the Administrative Agent an updated a Borrowing Base Certificate certified as true and correct by a Responsible Officer Officer, setting forth the Borrowing Base and the other information required therein as of the Borrowers' close of business on the Saturday of the immediately preceding week (in the case of the weekly Borrowing Base Certificates) or as of the Borrowers' close of business on the last day of each Borrower fiscal month (in the case of subsequent monthly Borrowing Base Certificates), in each case together with such other information with respect to be true the Eligible Accounts and correct (i) setting forth a calculation Eligible Inventory of the Available Commitment Borrowers as the Agent may reasonably request; it being understood that Inventory reports contained in the monthly Borrowing Base Certificates will be reconciled, but the Inventory reports contained in the weekly Borrowing Base Certificates will not.
(B) In the event of any dispute about the eligibility of any asset for inclusion in the Borrowing Base or the valuation thereof, the Agent's good faith judgment controls.
(C) The Borrowing Base set forth in a Borrowing Base Certificate is effective from and including the date such Borrowing Base Certificate is duly received by the Agent to but not including the date on which a subsequent Borrowing Base Certificate is duly received by the Agent, unless the Agent disputes the eligibility of any asset for inclusion in the Borrowing Base or the valuation thereof by notice of such date dispute to the Parent, in which case the value of deliverysuch asset shall, andat the discretion of the Borrowers, if either not be included in the Borrowing Base, certifying the aggregate Recallable Capital Base or be included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached a value reasonably acceptable to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); Agent.
(iiD) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Each Borrowing Base Certificate shall be delivered accompanied by backup schedules showing the derivation thereof and containing such detail and such other and further information as the Agent may reasonably request from time to time.
(E) Concurrently with the delivery of each Borrowing Base Certificate, the Borrowers shall give notice to the Agent of any mandatory prepayment required by this Credit Agreement pursuant to Section 2.6(B)(i), which notice shall be made, in each case, prior to the effectiveness thereof); and (iv) specify a prepayment date no later than five (5) Business Days following the occurrence earlier of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as the date on which such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered is given and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated the date on which such Borrowing Base Certificate providedis required to be provided to the Lenders hereunder.
(F) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding Notwithstanding anything to the contrary in this Credit Agreement Section 7.2, in no event shall any single element of value or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust asset be counted twice in determining the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentBase.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Nutramax Products Inc /De/)
Borrowing Base Certificate. Within ten (10a) days Borrower shall provide the Administrative Agent with the following documents in a form and detail reasonably satisfactory to Administrative Agentto be generally consistent with the form and detail of such documents provided in past practices as soon as possible after the end of each calendar month, month (but in any event within fifteen (15) Business Days after the Borrowers shall deliver end thereof) for prompt further distribution to the Administrative Agent an updated each Lender: a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding calendar month, duly completed and executed by a Responsible Officer of each the Borrower, together with all schedules required pursuant to the terms of the Borrowing Base Certificate duly completed (such certification, a “Monthly Borrowing Base Certificate”); provided that the Borrower may elect, at its option, to deliver more frequent Borrowing Base Certificates, in which case such Borrowing Base Certificates shall be computed in accordance with the requirements in respect of Borrowing Base Certificates required to be true delivered during the continuance of a Weekly Monitoring Event and correct (i) setting forth the Borrower shall continue to deliver Borrowing Base Certificates on a calculation weekly basis until January 15th of the Available Commitment next succeeding calendar year.
(b) At any time during the occurrence and continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of such date the close of deliverybusiness on the last day of the immediately preceding calendar week, andon Wednesday of each week (or, if included Wednesday is not a Business Day, on the next succeeding Business Day).
(c) The Borrower shall also cooperate with (and cause its Subsidiaries to cooperate with) the Administrative Agent, in connection with appraisals of Inventory that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (each, an “Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor Base attributable to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of DefaultInventory; provided, however, that such Borrowing Base Certificate will be delivered more frequently: the Administrative Agent may carry out, at the Borrower’s expense, (x) (i) in connection with one (1) Inventory Appraisal during any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credittwelve month period, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three at any time on or after the date on which Excess Availability has been less than the greater of (3A) Business Days $55,000,000 and (B) 20% of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madeMaximum Credit, in each case, prior to the effectiveness thereof); and (iv) no later than for five (5) consecutive Business Days following Days, the occurrence of Administrative Agent may carry out, at the Borrower’s expense, two (a2) Inventory Appraisals in any Exclusion Event twelve month period, and a Responsible Officer (iii) at any time during the continuation of a Credit Party obtaining actual knowledge thereof so long Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Inventory Appraisals as such Exclusion Event will result frequently as determined by the Administrative Agent in a its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Inventory Appraisal in any twelve month period. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base deficiency including correct and complete copies of any invoices, underlying agreements, instruments or cause other documents and the identity of all Exclusion Events for such month Account Debtors in respect of Accounts referred to equal 1% or more therein.
(d) The Administrative Agent may carry out investigations and reviews of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days each Loan Party’s property at the reasonable expense of the end of each calendar month or Borrower (bincluding field audits conducted by the Administrative Agent) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement(“Field Examination”); provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust carry out, at the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least Borrower’s expense, (x) (i) one (1) Business Day Field Examination in advance any twelve month period, (ii) at any time on or after the date on which Excess Availability has been less than the greater of (A) $55,000,000 and (B) 20% of the effective date Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Field Examinations in any twelve month period, and (iii) at any time during the continuation of such adjustmenta Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any calendar year. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Borrowing Base Certificate. Within (a) The Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender, on or prior to the 10th day after the last day of each fiscal month, a Borrowing Base Certificate as of the close of business on the last day of the applicable preceding fiscal month, which shall include, among other things, monthly cash flow details for the Eligible Portfolio Assets; provided that after the occurrence and during the continuance of an Event of Default, the Borrower shall deliver a Borrowing Base Certificate (as of the close of business on the last Business Day of the immediately preceding week) on or before the close of business of the third Business Day after the end of each week.
(b) The Borrower may deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender, concurrently with the relevant Borrowing Notice, a pro forma Borrowing Base Certificate as of the close of business on the date the Borrowing Notice under Section 2.05 was delivered, for the purposes of determining the Borrowing Base for such draw of Revolving Loans.
(c) No later than the later of (i) the next scheduled date of delivery of the Borrowing Base Certificate in accordance with Section 5.14(a) and (ii) ten (10) days Business Days after the Borrower obtains actual knowledge of the end incurrence of each calendar monthIndebtedness by 6 Brands or any Subsidiary of 6 Brands pursuant to Section 6.01(p), the Borrowers Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender a pro forma Borrowing Base Certificate showing the incurrence of such Indebtedness and any assets purchased with the proceeds thereof. Prior to delivery by the Borrower of the first Borrowing Base Certificate following delivery of financial statements pursuant to either Section 5.01(a)(i) or Section 5.01(b)(i) covering the fiscal quarter in which such Indebtedness was incurred, (i) the Administrative Agent shall be entitled to establish a Reserve in the amount of 110% of the principal amount of such Indebtedness (and following delivery of such Borrowing Base Certificate, no such Reserve shall be taken) and (ii) for the avoidance of doubt, any assets purchased with the proceeds of Indebtedness referenced in this Section 5.14(c) shall be considered in determining the Asset Value of the Equity Interests in 6 Brands.
(d) In connection with any transaction involving the purchase, Disposition or other change in the composition of Portfolio Assets that contribute more than 10% of the Borrowing Base, the Borrower shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified for delivery by a Responsible Officer of the Administrative Agent to each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of deliveryLender, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within later than three (3) Business Days of after the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary date of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’stransaction, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate as of the aggregate Investor Capital Commitmentsclose of business on the date of such transaction.
(e) After the effectiveness of Amendment No. 1, in which case such updated Borrowing Base Certificate shall no later than ten (10) Business Days after the Borrower obtains actual knowledge of any transaction by the Bebe Group that would be delivered and any mandatory prepayment required prohibited by this Credit Agreement shall be madeSection 6.01, Section 6.02, Section 6.03, Section 6.04, Section 6.05, and/or Section 6.06, in each case, prior without giving effect to any exceptions or “baskets” set forth therein, involving Indebtedness, payments or assets in excess of $10,000,000, the Borrower shall deliver written notice to the effectiveness thereof); Administrative Agent 4894-9978-4110 v.2 describing such transaction in reasonable detail. The Administrative Agent shall be entitled to request reasonable additional information, and (iv) no later than five (5) Business Days following until the occurrence delivery of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events Certificate incorporating an Asset Value for the Bebe Group Assets based on a Valuation Report that takes into account the effect of such month to equal 1% or more of aggregate Investor Capital Commitments (in which casetransaction, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust shall be entitled to establish a Reserve in its reasonable discretion to account for any reduction in the Borrowing Base Asset Value (if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1any) Business Day in advance of the effective date Bebe Group Assets as the result of such adjustmenttransaction.
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Borrowing Base Certificate. Within ten (10a) The Borrower will furnish to the Administrative Agent, no later than (i) 15 days of following the end of each calendar monthfiscal month (or, if such day is not a Business Day, the Borrowers next succeeding Business Day), a completed Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such immediately preceding fiscal month as outlined in Exhibit E, (ii) if Available Commitments shall deliver be $200,000,000 or less for each of five consecutive Business Days, on the Wednesday (or if such Wednesday is not a Business Day, on the next succeeding Business Day) of the next succeeding week following the last day of such five consecutive Business Day period a Borrowing Base Certificate calculating “Available accounts receivable”, Eligible Cash and Available Cash as of Saturday of the immediately preceding week, specifying the then applicable value for clause (c) of the definition of “Borrowing Base” and showing “Available inventory” as of the most recently delivered month-end Borrowing Base Certificate, and (iii) if requested by the Administrative Agent, at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably practicable but in no event later than five Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base and Available Cash as of the date so requested, in each case with such supporting documentation and additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(b) The Borrower will furnish to the Administrative Agent an updated at the time of each delivery of the Borrowing Base Certificate certified by a Responsible Officer under clause (a) above (and in any event not later than 15 days following the end of each Borrower fiscal month (or, if such day is not a Business Day, the next succeeding Business Day)), a certificate of a Financial Officer in the form attached as Annex I to be true and correct (i) setting forth a calculation Exhibit E hereto specifying, to the best of such Financial Officer’s knowledge, as of the Available Commitment as of such date of delivery, and, if included the information reported in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) the aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of CreditUnited States, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days the aggregate cash and cash equivalents of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls Borrower and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (its Subsidiaries held other than in the case United States, (iii) for each of a transfer from one existing PWM Investor this Agreement and the European Facilities Agreement, the undrawn amount available to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorbe drawn hereunder and thereunder, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitmentsrespectively, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days accounts payable position of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings Domestic Subsidiaries and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1v) Business Day in advance of the effective date of such adjustmentAvailable Cash.
Appears in 1 contract
Samples: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Borrowing Base Certificate. Within ten Furnish to the Revolving Administrative Agent, no later than (10a) days of four (4) Business Days after the end of each calendar monthweek (each calendar week deemed, the Borrowers shall deliver for purposes hereof, to the Administrative Agent an updated end on a Friday), a completed Borrowing Base Certificate certified by a Responsible Officer showing the Borrowing Base as of each Borrower to be true and correct the close of business on the Friday of such calendar week at all times when Revolving Credit Facility Availability is less than the greater of (i) the lesser of (A) 12.5% of the aggregate Revolving Credit Commitments at such time and (B) 12.5% of the Borrowing Base at such time and, (ii) $68,750,000, (b) eleven (11) Business Days after the end of each fiscal month, a completed Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such fiscal month, and (c) if requested by the Revolving Administrative Agent, at any other time when the Revolving Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably available but in no event later than eleven (11) Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base as of the date so requested, in each case with supporting documentation and additional reports with respect to the Borrowing Base as the Revolving Administrative Agent may reasonably request. The components of the Borrowing Base consisting of inventory shall be updated monthly as of the close of business on the last Business Day of each fiscal month. Concurrent with the delivery of each Borrowing Base Certificate (or such later time as the Revolving Administrative Agent may agree) pursuant to this Section 5.12, the Borrower shall deliver, for the period covered by such Borrowing Base Certificate, a report setting forth a calculation of (i) the Available Commitment as of Receivables sold by the Borrower and its Subsidiaries to each Auto Supplier Support Program SPV during such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor period and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditan aging analysis, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance such period, with the terms of this Credit Agreement; provided, however, that notwithstanding anything respect to receivables then owing to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded its Subsidiaries by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmenteach Auto Supplier Support Program SPV.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Federal Mogul Corp)
Borrowing Base Certificate. Within ten (10) days The Administrative Agent and Term Loan Agent shall have received the timely delivery of the end of most recently required Borrowing Base Certificate, with each calendar month, the Borrowers shall deliver to such Borrowing Base Certificate including schedules as required by the Administrative Agent an updated and Term Loan Agent. Each request by the Borrower for a Credit Extension shall be deemed to be a representation and warranty by the Borrower that the conditions specified in Sections 4.02(b) and (c) have been satisfied on and as of the date of the applicable Credit Extension and that after giving effect to such Credit Extension the Borrower shall continue to be in compliance with the Revolving Loan Borrowing Base Certificate certified and the Term Loan Borrowing Base. The conditions set forth in this Section 4.02 are for the sole benefit of the Credit Parties but until the Required Lenders otherwise direct the Administrative Agent to cease making Revolving Loans and the Issuing Bank to cease issuing Letters of Credit, the Revolving Loan Lenders will fund their Commitment Percentage of all Revolving Loans and participate in all Swing Line Loans and Letters of Credit whenever made or issued, which are requested by the Borrower and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent, provided, however, the making of any such Loans or the issuance of any Letters of Credit shall not be deemed a Responsible Officer modification or waiver by any Credit Party of each Borrower the provisions of this Article IV on any future occasion or a waiver of any rights or the Credit Parties as a result of any such failure to be true and correct comply. Notwithstanding the immediately preceding sentence, other than in connection with (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor Permitted Overadvances and (ii) certifying that no Default or Event of Default existsa Conforming DIP, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of and the Lenders will not waive any condition in this Section 4.02 or make any Credit Extension if such Investor Capital Calls and calculated Persons have actual knowledge that the Loan Parties would breach Section 6.11 after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer applicable extension of any Included Investor’s, Investor Capital Commitment (other than in credit. The immediately preceding sentence shall not be amended without the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end consent of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Term Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.Lender. 100
Appears in 1 contract
Samples: Fifth Amendment to Second Amended and Restated Credit Agreement (Stage Stores Inc)
Borrowing Base Certificate. Within ten (10i) days of On the end Effective Date, (ii) unless clause (iii) below applies, each month, not later than 5:00 P.M. (New York time) on or before the 12th Business Day of each calendar such month, (iii) during any period in which a Weekly Borrowing Base Period is in effect, each week, not later than 5:00 P.M. (New York time) on or before the Borrowers shall deliver to third Business Day of each such week (or at such other times as the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct may request), (iiv) setting forth a calculation at the time of the Available Commitment as consummation of such date a Permitted Acquisition, (v) at the time of delivery, and, if the consummation of a disposition pursuant to Section 10.02(e) involving assets included in the Borrowing BaseBase in excess of the $5,000,000 and (vi) at the time any Borrower ceases to be a wholly-owned Subsidiary of the Company or is designated as an Unrestricted Subsidiary (in each case under clauses (i) -(vi) hereof with supporting calculations in reasonable detail including, certifying the aggregate Recallable Capital included without limitation, with respect to cash balances, accounts receivable, accounts payable and inventory amounts), a certificate substantially in the Unfunded Capital Commitments andform of Exhibit M (each, on a monthly basis“Borrowing Base Certificate”) shall be prepared as of the last Business Day of the preceding month in the case of each subsequent Borrowing Base Certificate (or, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying if any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be is delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditfrequently than monthly, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more last Business Day of the aggregate Investor Capital Commitments, in which case week preceding such updated delivery). Each such Borrowing Base Certificate shall include such other supporting information as may be delivered and any mandatory prepayment required reasonably requested from time to time by the Administrative Agent or the Collateral Agent. Notwithstanding the generality of the foregoing provisions of this Credit Agreement shall be madeclause (j), in each case, prior to the effectiveness thereof); and (iv) no later than within five (5) Business Days following of the occurrence of Effective Date (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result date may be extended from time to time by the Administrative Agent in a Borrowing Base deficiency or cause all Exclusion Events for such month its sole discretion), the Company shall be allowed (but not required) to equal 1% or more of aggregate Investor Capital Commitments (in which case, such deliver the updated Borrowing Base Certificate pursuant to Section 5.03(b) that shall be, in form and in substance, in compliance with requirements of this clause (j) and that shall be delivered and prepared as of August 31, 2016 (other than any mandatory prepayment required by this Credit Agreement cash balances, which shall be made) and otherwiseas of the date of delivery thereof), Exclusion Events may which shall be reported (and recognized as a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms for all purposes of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) days The Borrowers shall provide the Administrative Agent and each Lender with a Borrowing Base Certificate, certified as being true and correct by the Borrowers' chief financial officer, controller or any other officer acceptable to the Administrative Agent, on the seventh Business Day following the last day of each fiscal month, or more frequently if requested by the Administrative Agent. Each subsequent Borrowing Base Certificate shall be based upon, with respect to Receivables and Inventory, information as of the end last day of the immediately preceding fiscal month. Each such Borrowing Base Certificate shall set forth Borrowing Base calculations since the date of the last prior Borrowing Base Certificate and shall include a monthly summary aging of Receivables, a monthly schedule of each calendar monthcategory of Eligible Inventory and all Eligible Inventory that has become ineligible, specifying the applicable category of ineligibility and such other information as the Administrative Agent may request from time to time.
(b) At least once each fiscal month (and more often if so requested by the Administrative Agent), the Borrowers shall deliver provide the Administrative Agent and the Lenders with a report (a "Monthly Report"), dated the last day of such fiscal month, and certified by the Borrowers' chief financial officer, controller or any other officer acceptable to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower Agent, which Monthly Report shall include the following information for the Borrowers, and shall cover the period since the last prior Monthly Report delivered to be true and correct the Administrative Agent:
(i) setting forth a calculation A summary aging of Receivables and Eligible Receivables specifying the Available Commitment as of such date of delivery, and, if included in Receivables and Eligible Receivables created or acquired during the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and prior month;
(ii) certifying A schedule of all Eligible Inventory that no Default has become ineligible, specifying the applicable category of ineligibility;
(iii) A list of all Receivables, Inventory, Equipment and Real Property which do not satisfy any warranty, representation or Event of Default existscovenant contained in this Agreement or any other Loan Document and an explanation thereof;
(iv) A schedule listing all material disputes and claims arising, or specifying claims, offsets or counterclaims asserted with respect to, Receivables, any such Default material delays or Event expected delays in the Borrowers' performance of Defaultany of its obligations to any account debtor, and all adverse information relating to the financial condition of any account debtor which may reasonably be expected to impair the collectability of a material portion of the Receivables;
(v) An aging of accounts payable, if so requested by any Lender; providedand
(vi) A list of all new locations, howeveroffices, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with or places of business opened by any new Borrowing Borrower or request for Letter at which any Borrower has located any of Credit (the Collateral, its operations, assets, property or books and records, or to which it has relocated its headquarters, and a description of the Collateral or other property located thereon, and a list of any locations, offices or places of business closed or abandoned by any Borrower. Each fiscal month's Monthly Report shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within twenty-five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (1025) days of after the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentmonth.
Appears in 1 contract
Borrowing Base Certificate. Within ten Quarterly, not later than twenty (1020) days of after the end of each calendar monthfiscal quarter, a certificate signed by the Borrowers shall deliver to chief financial officer or the Administrative vice president-finance of the Borrower Agent an updated substantially in the form of Exhibit I (a “Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (iCertificate”) setting forth detailing the Eligible Receivables, containing a calculation of Availability and reflecting all sales, collections, and debit and credit adjustments, as of the Available last day of the preceding quarter (or as of a more recent date as the Agent may from time to time reasonably request); provided that, (x) if the sum of (I) the average daily balance of Revolving Credit Loans (inclusive of Swing Loans), plus (II) the average daily undrawn amount of Letters of Credit during any fiscal month was greater than or equal to the lesser of (x) $50,000,000 and (y) twenty-five percent (25%) of the Aggregate Revolving Credit Commitment then in effect, the Borrower Agent shall deliver a Borrowing Base Certificate, not later than the twentieth (20th) day after the end of such fiscal month, setting forth the Borrowing Base calculated as of the last day of such month, and (y) if Excess Availability is at any time less than the greater of (I) Fifteen Million Dollars ($15,000,000) and (II) 12.5% of the lesser of (A) the Borrowing Base then in effect and (B) the Aggregate Revolving Credit Commitment as of such date date, then, commencing with the first calendar week following the end of deliverysuch fiscal month, andand continuing on a weekly basis thereafter, if included in until a period of sixty (60) consecutive days has elapsed during which at all times Excess Availability has equaled or exceeded the greater of (I) Fifteen Million Dollars ($15,000,000) and (II) 12.5% of the lesser of (A) the Borrowing Base, certifying Base then in effect and (B) the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basisAggregate Revolving Credit Commitment as of such date, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrower Agent shall deliver the Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to weekly, on the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end Wednesday of each calendar month or week (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; providedor, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower if Wednesday is not required to monitor a Business Day, on the Ratings of Included Investorsnext succeeding Business Day), and the Administrative Agent will monitor such Ratings and may adjust setting forth the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance calculated as of the effective date close of such adjustmentbusiness on the immediately preceding Saturday.”
Appears in 1 contract
Borrowing Base Certificate. Within ten A Borrowing Base Certificate substantially in the form of Exhibit I as of the date required to be delivered or so requested, in each case with supporting documentation (10including, without limitation, the documentation described in Schedule 1 to Exhibit I) days shall be furnished to the Administrative Agent: (i) as soon as available and in any event prior to the Initial Extension of Credit, (ii)(A) after the Initial Extension of Credit, on or before the 15th day following the end of each fiscal month, which monthly Borrowing Base Certificate shall reflect the Inventory updated as of the end of each calendar monthsuch month and (B) in addition to such monthly Borrowing Base Certificates, (x) upon the Borrowers shall deliver to occurrence and continuance of an Event of Default or if Availability is less than $200,000,000, on or before the Administrative Agent an updated third Business Day following the end of each week, which weekly Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation shall reflect the Accounts updated as of the Available Commitment as of immediately preceding Thursday; provided that if Availability is equal to or greater than $250,000,000 for three consecutive Business Days, such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered pursuant to clause (ii)(A) herein and (y) at the option of the Borrower, weekly updates of Accounts, certified by a Responsible Officer, and (iii) if requested by the Administrative Agent at any mandatory prepayment required by this Credit Agreement shall be madeother time when the Administrative Agent reasonably believe that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably available after such request, in each casecase with supporting documentation as the Initial Lenders may reasonably request (including without limitation, prior the documentation described on Schedule 1 to Exhibit I). Documents required to be delivered pursuant to Section 5.01 or this Section 5.03 (to the effectiveness thereof); extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof if so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which casedelivered, such updated Borrowing Base Certificate shall be deemed to have been delivered and any mandatory prepayment required on the date of receipt by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor irrespective of when such Ratings document or materials are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website (the “Informational Website”), if any, to which each Lender and may adjust the Borrowing Base if Agents have unrestricted access (whether a commercial, third-party website or whether sponsored by the Rating Administrative Agent); provided that the accommodation provided by the foregoing sentence shall not impair the right of the Administrative Agent to request and receive from the Loan Parties physical delivery of any Rated Included Investor is downgraded by providing notice specific information provided for in Section 5.01 or this Section 5.03. Other than with respect to the Borrowers at least one (1) Business Day in advance bad faith, gross negligence or willful misconduct on the part of the effective date Lead Arrangers, Agents or Lenders, none of such adjustmentthe Lead Arrangers, Agents or the Lenders shall have any liability to any Loan Party, each other or any of their respective Affiliates associated with establishing and maintaining the security and confidentiality of the Informational Website and the information posted thereto.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Borrowing Base Certificate. Within ten (10a) The Borrower will furnish to the Administrative Agent, no later than (i) 15 days of following the end of each calendar monthfiscal month (or, if such day is not a Business Day, the Borrowers next succeeding Business Day), a completed Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such immediately preceding fiscal month as outlined in Exhibit K, (ii) if Available Commitments shall deliver be $150,000,000 or less for each of five consecutive Business Days, on the Wednesday (or if such Wednesday is not a Business Day, on the next succeeding Business Day) of the next succeeding week following the last day of such five consecutive Business Day period, an interim calculation of Eligible Accounts Receivable as of Saturday of the immediately preceding week, and (iii) if requested by the Administrative Agent, at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably practicable but in no event later than five Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base as of the date so requested, in each case with such supporting documentation and additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(b) The Borrower will furnish to the Administrative Agent an updated at the time of each delivery of the Borrowing Base Certificate certified by a Responsible Officer under clause (a) above (and in any event not later than 15 days following the end of each Borrower fiscal month (or, if such day is not a Business Day, the next succeeding Business day)), a certificate of a Financial Officer in the form attached as Annex I to be true and correct (i) setting forth a calculation Exhibit K hereto specifying, to the best of such Financial Officer’s knowledge, as of the Available Commitment as of such date of delivery, and, if included the information reported in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) the aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of CreditUnited States, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days the aggregate cash and cash equivalents of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls Borrower and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (its Subsidiaries held other than in the case United States, (iii) for each of a transfer from one existing PWM Investor this Agreement and the European Facilities Agreement, the undrawn amount available to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorbe drawn hereunder and thereunder, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitmentsrespectively, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days accounts payable position of the end of each calendar month or Borrower and the Domestic Subsidiaries and (bv) the reduction of any Investorunearned income on the Borrower’s Investor balance sheet that represents funded Customer Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything Expenditures relating to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentfuture production.
Appears in 1 contract
Samples: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Borrowing Base Certificate. Within ten (10i) days of On the end Restatement Effective Date, (ii) not later than 5:00 P.M. (New York time) on or before the 10th Business Day of each calendar monthmonth thereafter (or no later than the Wednesday of each week during any period in which a Weekly Borrowing Base Period is in effect), a borrowing base certificate setting forth the Borrowers Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit P (each, a “Borrowing Base Certificate”), which shall deliver to be prepared (A) as of January 29, 2011 in the Administrative Agent an updated case of the Borrowing Base Certificate certified by a Responsible Officer delivered on the Restatement Effective Date and (B) as of the close of business of the preceding month in the case of each Borrower to be true and correct subsequent Borrowing Base Certificate (i) setting forth a calculation of the Available Commitment as of such date of delivery, andor, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be is delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditweekly, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance close of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more business of the aggregate Investor Capital CommitmentsSaturday preceding such delivery, in which case such updated the calculation thereunder with respect to Inventory shall be based upon good faith estimates by Borrowers) and (iii) the Obligors’ Agent shall also furnish a Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within five (5) Business Days following after December 15 of each year (which shall roll forward the occurrence Qualified Obligors’ Inventory, credit card receivables and the total outstanding Loans), as of (a) any Exclusion Event and a Responsible Officer the close of a Credit Party obtaining actual knowledge thereof so long as business on the immediately preceding Saturday; provided that such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall not be delivered required to be furnished in any given Fiscal Year, if (x) as of such date there are no outstanding Loans or requests and (y) no Notice of Borrowing has been provided at any mandatory prepayment required by this Credit Agreement shall be made) time between December 15 and otherwise, Exclusion Events may be reported (and a updated December 31 of such Fiscal Year. Each such Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything shall include such supporting information as may be reasonably requested from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and time by the Administrative Agent will monitor such Ratings and may adjust or any Co-Collateral Agent. The Borrowers may, at their option, elect to furnish the Administrative Agent with a Borrowing Base Certificate on a more frequent basis than is otherwise required pursuant to this Section 9.01(j); provided that, if the Rating Borrowers elect to deliver a Borrowing Base Certificate on a more frequent basis than is required by the other provisions of any Rated Included Investor is downgraded by providing notice this Section 9.01(j), then the Obligors’ Agent shall continue to furnish a Borrowing Base Certificate on such basis from the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentelection through the remainder of the Fiscal Year in which such election was made.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Toys R Us Inc)
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of On the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor Closing Date and (ii) certifying not later than 5:00 P.M. (New York time) on or before the 15th Business Day of each fiscal month thereafter, (A) a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit I (each, a “Borrowing Base Certificate”) and setting forth the aggregate amount of unrestricted cash of Pyxus Topco and its Subsidiaries on a consolidated basis as of the last day of the prior fiscal month, (B) accounts receivable agings inclusive of reconciliations to the general ledger, (C) accounts payable schedules (“A/P Agings Report”) inclusive of reconciliations to the general ledger, (D) screenshots of balances for the prior month with respect to the Collection Accounts and Concentration Accounts (and any other depository accounts reasonably requested by Agent), and (E) Inventory reports, each of which shall be prepared as of the last Business Day of the fiscal month immediately preceding such required delivery. Each such Borrowing Base Certificate shall include such supporting information as may be reasonably requested from time to time by the Administrative Agent (including a break-down of all Accounts during the last fiscal month that were subject to the Permitted Receivables Liens). In addition, Borrower shall deliver at such intervals as Administrative Agent may require: (i) confirmatory assignment schedules; (ii) copies of Customer’s invoices; (iii) evidence of shipment or delivery; and (iv) such further schedules, documents and/or information regarding the Collateral as Administrative Agent may reasonable require. Subject to the immediately succeeding sentence, the Administrative Agent shall have the right to confirm and verify all Accounts by any manner and through any medium that it reasonably considers advisable, and the Loan Parties shall furnish all such assistance and information as the Administrative Agent may reasonably request in connection with such test verifications; provided, however that, so long as no Default or Event of Default existsshall have occurred and be continuing, such test verifications shall only occur during a field examination with Borrower Agent communicating directly with an account debtor in the presence of a representative of Agent (unless otherwise agreed to by Borrower Agent). The Administrative Agent in its own name or specifying in the name of others may at any such time after the occurrence and during the continuation of a Default or an Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection Default communicate with any new Borrowing or request for Letter of Credit (and shall be attached account debtors on the Accounts to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered verify with them to the Administrative Agent’s reasonable satisfaction the existence, amount and terms of any Accounts. The items to be provided under this Section are to be in form satisfactory to Administrative Agent along with a summary and executed by the Borrower Agent and delivered to Administrative Agent from time to time solely for Administrative Agent’s convenience in maintaining records of the Collateral, and any Loan Party’s failure to deliver any of such Investor Capital Calls and calculated after giving effect items to Administrative Agent shall not affect, terminate, modify or otherwise limit Administrative Agent’s Lien with respect to the related Investor Capital Contributions requested Collateral. Unless otherwise agreed to by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sAdministrative Agent, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor items to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate be provided under this Section 9.01 shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating by a method of any Rated Included Investor is downgraded Approved Electronic Communication (including, without limitation, by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentemail).
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) The Borrower will furnish to the Administrative Agent, no later than (i) 15 days of following the end of each calendar monthfiscal month (or, if such day is not a Business Day, the Borrowers next succeeding Business Day), a completed Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such immediately preceding fiscal month as outlined in Exhibit F, (ii) if Available Commitments shall deliver be $150,000,000 or less for each of five consecutive Business Days, on the Wednesday (or if such Wednesday is not a Business Day, on the next succeeding Business Day) of the next succeeding week following the last day of such five consecutive Business Day period a Borrowing Base Certificate calculating "Available accounts receivable" and Available Cash as of Saturday of the immediately preceding week and showing "Available inventory" as of the most recently delivered month-end Borrowing Base Certificate, and (iii) if requested by the Administrative Agent, at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably practicable but in no event later than five Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base and Available Cash as of the date so requested, in each case with such supporting documentation and additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(b) The Borrower will furnish to the Administrative Agent an updated at the time of each delivery of the Borrowing Base Certificate certified by a Responsible Officer under clause (a) above (and in any event not later than 15 days following the end of each Borrower fiscal month (or, if such day is not a Business Day, the next succeeding Business day)), a certificate of a Financial Officer in the form attached as Annex I to be true and correct (i) setting forth a calculation Exhibit F hereto specifying, to the best of such Financial Officer's knowledge, as of the Available Commitment as of such date of delivery, and, if included the information reported in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) the aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of CreditUnited States, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days the aggregate cash and cash equivalents of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls Borrower and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (its Subsidiaries held other than in the case United States, (iii) for each of a transfer from one existing PWM Investor this Agreement and the European Facilities Agreement, the undrawn amount available to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorbe drawn hereunder and thereunder, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitmentsrespectively, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days accounts payable position of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings Domestic Subsidiaries and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1v) Business Day in advance of the effective date of such adjustmentAvailable Cash.
Appears in 1 contract
Samples: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Borrowing Base Certificate. Within ten (10i) days of On the end Effective Date, (ii) not later than 5:00 P.M. (New York time) on or before the 15th day of each calendar month, the Borrowers shall deliver to month thereafter (or at such other times as the Administrative Agent may reasonably request), (iii) at the time of the consummation of a Permitted Acquisition, (iv) not later than 5:00 P.M. (New York time) on or before each Wednesday on a weekly basis during a Compliance Period or after the occurrence and during the continuance of an updated Event of Default, (v) at the time of consummation of any Asset Sale (or series of contemporaneous or related Asset Sales) of assets with a book value which is equal to or greater than $25,000,000 or the Equivalent Amount thereof and (vi) at such other times as US Company may elect (provided that if US Company elects to deliver a borrowing base certificate at any other time pursuant to this clause (v), US Company shall deliver a borrowing base certificate on a weekly basis for the 60 day period following such delivery), a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonably detail) substantially in the form of Exhibit P (each, a “Borrowing Base Certificate”), which shall be prepared (A) as of November 30, 2015 in the case of the initial Borrowing Base Certificate certified by a Responsible Officer and (B) as of the last Business Day of the preceding month in the case of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such subsequent Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditbut adjusted, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor Borrowing Base Certificate delivered in connection with a Permitted Acquisition, to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorreflect any Eligible Accounts, unless such transfer will result in Eligible Inventory, Eligible Machinery and Equipment and Eligible Real Property acquired by a Borrowing Base deficiency or cause all transfers for Party pursuant to such month to equal 1% or Permitted Acquisition) (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the aggregate Investor Capital Commitments, in which case last Business Day of the week preceding such updated delivery). Each such Borrowing Base Certificate shall include the then applicable, marked-to-market Swap Termination Value which the Borrower intends be delivered treated as a Qualified Swap Termination Value for purposes of Section 5.03(d), and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long all such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably requested from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and time by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentAgent.
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Borrowing Base Certificate. Within ten As soon as available but in any event on or prior to the 20th calendar day after the later of (10i) days of the end last day of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor month and (ii) certifying that no Default the last day of each retail month (based on the Borrower Agent’s 52/53 week year end (the period ending on such later date, a “Fiscal Month”)) (or Event more frequently as the Borrower Agent may elect, so long as the frequency of Default existsdelivery is maintained by the Borrower Agent for the immediately following 60 day period), or specifying any such Default or Event of Default; provided, however, that such a Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance close of Investor Capital Calls to Investors business on the last day of the immediately preceding fiscal month (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than or in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in voluntary delivery of a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate at the election of the aggregate Investor Capital CommitmentsBorrower Agent’s, a subsequent date), together with such supporting information in connection therewith to the extent required under Section 1.04(a) and otherwise as the Administrative Agent may reasonably request, which case such updated may include, without limitation, (A) Inventory reports by category and location, together with a reconciliation to the corresponding Borrowing Base Certificate, (B) a reasonably detailed calculation of Eligible Inventory, (C) a reconciliation of the Loan Parties’ Inventory between the amounts shown in the Borrower Agent’s stock ledger and any Inventory reports delivered pursuant to clause (A) above, (D) a reasonably detailed calculation of Eligible Trade Receivables and Eligible Credit Card Receivables, (E) a reasonably detailed aging of the Loan Parties’ Accounts and a reconciliation to the corresponding Borrowing Base Certificate and (F) a reasonably detailed report on restrictions on the sale of Inventory related to intellectual property owned by a third party; provided that (1) upon the occurrence and during the continuance of a Weekly Reporting Event, the Borrower Agent shall deliver a Borrowing Base Certificate and such supporting information as is reasonably practicable to provide on a weekly basis on Thursday of each week (or if Thursday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and (2) any Borrowing Base Certificate delivered other than with respect to month’s end may be based on such estimates by the Borrower Agent of shrink and other amounts as the Borrower Agent may deem necessary; provided, further, that a revised Borrowing Base Certificate based on the Borrowing Base Certificate most recently delivered shall be delivered within five Business Days after the (1) consummation of a sale or other disposition (or merger, consolidation or amalgamation that constitutes a sale or disposition) of any Capital Stock of a Loan Party to any Person other than a Loan Party that results in the disposition of Collateral with an aggregate value in excess of the lesser of (x) $20,000,000 and any mandatory prepayment required by this Credit Agreement shall be made(y) 5.0% of the Borrowing Base in effect at such time, or (2) the designation of a subsidiary as an Unrestricted Subsidiary to the extent such subsidiary directly or indirectly owns or controls (immediately prior to such designation) Collateral with an aggregate value in excess of the lesser of (x) $20,000,000 and (y) 5.0% of the Borrowing Base in effect at such time, together, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long with such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and reasonably requested by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.Agent; and
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Borrowing Base Certificate. Within ten Commencing on November 5, 2007. on Monday of each week (10and in the case of clause (i) days below, together with each Funding Notice or Issuance Notice): (i) a Borrowing Base Certificate, current as of the end close of business on the last Business Day of the immediately preceding week (or Friday of the immediately preceding week, as the case may be), supported by schedules showing the derivation thereof and containing such detail and other information as the Administrative Agent or the Borrowing Base Agent may reasonably request from time to time; provided that (1) the Borrowing Base set forth in the Borrowing Base Certificate shall be effective from and including the date such Borrowing Base Certificate is duly received by the Agents and the Borrowing Base Agent but not including the date on which a subsequent Borrowing Base Certificate is received by the Agents and the Borrowing Base Agent, unless any Agent or the Borrowing Base Agent disputes the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof by notice of such dispute to Borrowers, (2) in the event of any dispute about the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof, the more conservative approach of such Agent’s or Borrowing Base Agent’s good faith business judgment shall control and (3) the Inventory shall be updated on a weekly basis component of the Borrowing Base; and (ii) a rolling twenty-six (26) week cash forecast, in each calendar monthcase, all in detail and in form reasonably satisfactory to the Administrative Agent and the Borrowing Base Agent. Without limiting any other rights of Administrative Agent and the Borrowing Base Agent, upon Administrative Agent’s or Borrowing Base Agent’s request, Borrowers shall provide Administrative Agent and Borrowing Base Agent on a daily basis with a schedule of Accounts, collections received and credits issued on a daily basis and inventory reports prepared on a monthly or more frequent basis as the Administrative Agent or Borrowing Base Agent may, in good faith, request in the event that at any time any of (such schedule of Accounts, collections received and credits issued and inventory report, collectively, the “Daily Collateral Reporting”): (1) an Event of Default or Default, shall exist or have occurred, or (2) Borrowers shall have failed to deliver any Borrowing Base Certificate in accordance with this Section 5.1(q), or (3) upon Administrative Agent’s or Borrowing Base Agent’s good faith belief, any information contained in any Borrowing Base Certificate provided under this Section 5.1(q) is incomplete, inaccurate or misleading, or (4) Availability is less than $10,000,000 (it being understood that once the Borrowers are required by Administrative Agent or Borrowing Agent to provide Daily Collateral Reporting on a daily basis in accordance with this Section 5.1(q), the Borrowers shall continue to provide Daily Collateral Reporting to Administrative Agent and Borrowing Base Agent on a daily basis unless and until (x) no Event of Default or Default has occurred and are then continuing, (y) Availability exceeds $25,000,000 for at least 30 consecutive days, and (z) the Borrowers have otherwise complied with its obligation to deliver Daily Collateral Reporting to Administrative Agent and Borrowing Base Agent in accordance with the provisions hereof and such Daily Collateral Reporting is complete and accurate (and not misleading) in all respects, in Administrative Agent’s and Borrowing Base Agent’s reasonable discretion; thereafter, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment Certificates in accordance with this Section 5.1(q)). Notwithstanding the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Documentforegoing, the Borrower is not required parties to monitor this Agreement hereby agree that the Ratings of Included Investors, and the Borrowers shall provide Daily Collateral Reporting to Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if Agent on a daily basis until the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one conditions in sub-clauses (1x), (y) Business Day in advance of the effective date of such adjustment.and (z) are satisfied;
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Samples: Credit and Guaranty Agreement (Syntax-Brillian Corp)
Borrowing Base Certificate. Within ten (10i) days of On the end Effective Date, (ii) not later than 5:00 P.M. (New York time) on or before the 10th Business Day of each calendar monthmonth thereafter (or no later than the Wednesday of each week during any period in which a Weekly Borrowing Base Period is in effect), a borrowing base certificate setting forth the Borrowers Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit P (each, a “Borrowing Base Certificate”), which shall deliver to be prepared (A) as of September 26, 2009 in the Administrative Agent an updated case of the initial Borrowing Base Certificate certified by a Responsible Officer and (B) as of the close of business of the preceding month in the case of each Borrower to be true and correct subsequent Borrowing Base Certificate (i) setting forth a calculation of the Available Commitment as of such date of delivery, andor, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be is delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditweekly, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance close of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more business of the aggregate Investor Capital CommitmentsSaturday preceding such delivery, in which case such updated the calculation thereunder with respect to Inventory shall be based upon good faith estimates by Borrowers) and (iii) the Obligors’ Agent shall also furnish a Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than within five (5) Business Days following after December 15 of each year (which shall roll forward the occurrence Qualified Obligors’ Inventory, credit card receivables and the total outstanding Loans), as of (a) any Exclusion Event and a Responsible Officer the close of a Credit Party obtaining actual knowledge thereof so long as business on the immediately preceding Saturday. Each such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events include such supporting information as may be reported (and reasonably requested from time to time by the Administrative Agent or any Co-Collateral Agent. The Borrowers may, at their option, elect to furnish the Administrative Agent with a updated Borrowing Base Certificate provided) within ten (10) days of on a more frequent basis than is otherwise required pursuant to this Section 9.01(j); provided that, if the end of each calendar month or (b) Borrowers elect to deliver a Borrowing Base Certificate on a more frequent basis than is required by the reduction of any Investor’s Investor Capital Commitment in accordance with the terms other provisions of this Credit Agreement; providedSection 9.01(j), however, that notwithstanding anything then the Obligors’ Agent shall continue to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the furnish a Borrowing Base if Certificate on such basis from the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentelection through the remainder of the Fiscal Year in which such election was made.
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Borrowing Base Certificate. Within ten (10i) As soon as available, but in any event within twenty (20) days after (x) if the Borrowing Base Threshold is satisfied, the end of the current calendar quarter and (y) if the Borrowing Base Threshold is not satisfied, the end of the current month, a Borrowing Base Certificate, together with a Back-Log Spreadsheet and a Take-Out Spreadsheet, providing, as of the end of each calendar the prior month, (A) megawatts installed, (B) megawatts added, (C) net megawatts backlog, (D) megawatts terminated, (E) the Borrowers Borrowing Base, (F) the Total Outstandings, (G) the Unencumbered Liquidity, (H) any contracts included in Project Back-Log that are ineligible for Tranching of Projects under any open Tax Equity Partnership (including the number, face value and reasons for rejection), (I) the NYGB Borrowing Base, (J) the Revolving Exposure of NYGB and of each other Lender, (K) the NYGB Borrowing Base Availability and (L) such other supporting information as reasonably requested by the Administrative Agent, the Collateral Agent or the Lenders, each prepared as at the end of such month, duly certified by a Responsible Officer that is the chief executive officer, chief financial officer, treasurer or controller of the Borrower. Notwithstanding the foregoing, in the event of a Borrowing Base Deficiency, for the period during which the Borrowing Base Deficiency exists, the Loan Parties shall deliver to the Administrative Agent, the Collateral Agent an updated and the Lenders such Borrowing Base Certificate certified on a bi-weekly basis.
(ii) Together with each Borrowing Base Certificate delivered pursuant to Section 6.02(m)(i) above, or more frequently as requested by a Responsible Officer the Administrative Agent, the Collateral Agent or the Required Lenders, (A) the monthly or quarterly, as applicable, aging of each Borrower the accounts receivable and accounts payable of the Loan Parties, (B) an aged listing of accounts related to the Eligible Direct Payment Receivables, the Eligible Customer Upfront Payment Receivables, the Eligible Trade Accounts and the Eligible Project Back-Log and (C) an Inventory report. Documents required to be true and correct delivered pursuant to Section 6.01(a) or (ib) setting forth a calculation of or Section 6.02(g) (to the Available Commitment as of extent any such date of delivery, documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if included so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provide a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 1.01(a); or (b) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website, related to an SEC filing or whether sponsored by the Administrative Agent); provided that: the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowing BaseBorrower with any such request by a Lender for delivery, certifying and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower and each other Loan Party hereby acknowledges that (A) the aggregate Recallable Capital included Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower and its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (B) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The [***] = Certain information contained in this document, marked by brackets, has been omitted because it is both not material and would be competitively harmful if publicly disclosed. Borrower hereby agrees that so long as the Unfunded Capital Commitments andBorrower is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (1) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on a monthly basisthe first page thereof; (2) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, each Arranger, the transfer L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor United States federal and state securities laws (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that to the extent such Borrowing Base Certificate will Borrower Materials constitute Information, they shall be delivered more frequently: treated as set forth in Section 11.07); (3) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (4) the Administrative Agent and any Affiliate thereof and each Arranger shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, (i) in connection with any new Borrowing or request for Letter of Credit (and the Borrower shall be attached under no obligation to the related Request for Borrowing or Request for Letter of Credit, as applicable, mark any Borrower Materials “PUBLIC” and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3any materials furnished pursuant to Section 6.02(g) Business Days of the issuance of Investor Capital Calls to Investors (delivered to may be treated by the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in Lenders as if the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment same had been marked “PUBLIC” in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentherewith.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Borrowing Base Certificate. Within ten (10a) days of On the end Closing Date, the Initial Borrowing Base Certificate and (b) thereafter (i) by 9:00 A.M. (New York City time) on the twentieth (20th) day of each calendar monthmonth (or more frequently, but not more frequently than once per week, as either the Borrowers shall deliver Co-Collateral Agents may reasonably request or as the Borrower may elect, as the case may be), (ii) at any time during a Compliance Period, by 9:00 A.M. (New York City time) on the third (3rd) Business Day of the next succeeding calendar week after the week in which such Compliance Period commences and the third (3rd) Business Day of the next succeeding calendar week after each week thereafter while such Compliance Period continues, (iii) on the date on which any Collateral included in the Borrowing Base with a value in excess of $5,000,000 is sold or disposed of in any non-ordinary course of business sale or disposition to any Person other than a Loan Party concurrently with such sale or disposal and (iv) during the continuance of an Event of Default, as frequently as the Co-Collateral Agents may request, in each case a certificate substantially in the form of Exhibit J setting forth the Borrowing Base (with supporting calculations) in form and substance reasonably satisfactory to the Administrative Agent an updated Borrowing Base Certificate Co-Collateral Agents, appropriately completed (with such modifications as to format and presentation as may be reasonably requested by the Co-Collateral Agents upon five (5) Business Days’ notice) together with all attachments and supporting documentation as contemplated thereby and certified as true, correct and complete in all material respects by a Responsible Officer of each the Borrower to (each, a “Bring Down Borrowing Base Certificate”). The Borrowing Base Certificates shall be true and correct prepared (i1) setting forth a calculation of the Available Commitment as of such date of deliveryJune 30, and2010, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a the Initial Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate, (2) in the case of the aggregate Investor Capital Commitments, in which case such updated Bring Down Borrowing Base Certificate shall to be delivered and any mandatory prepayment required by this Credit Agreement shall be mademonthly, as of the last Business Day of the preceding month (or, in each casethe case of any more frequent delivery of a Bring Down Borrowing Base Certificate, prior to the effectiveness thereof); and (iv) a subsequent date no later more than five (5) Business Days following prior to the occurrence date of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Bring Down Borrowing Base deficiency Certificate), (3) in the case of the Bring Down Borrowing Base Certificate to be delivered every week, as of the last Business Day of the preceding week, (4) in the case of any Bring Down Borrowing Base Certificate to be delivered at the request of the Co-Collateral Agents or cause all Exclusion Events for at the election of the Borrower, as of the Business Day specified in the request (provided that such month date shall be no more than five (5) Business Days prior to equal 1% the date of such Bring Down Borrowing Base Certificate) and (5) in the case of any Bring Down Borrowing Base Certificate to be delivered after any non-ordinary course of business sale or more disposal of aggregate Investor Capital Commitments (Collateral included in the Borrowing Base in excess of $5,000,000, as of the last Business Day of the week in which case, such updated sale or disposal is completed. Each such Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events include such other supporting information as may be reported (reasonably requested from time to time by the Co-Collateral Agents including information concerning the amount, composition and a updated Borrowing Base Certificate provided) within ten (10) days manner of calculation of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentBase.
Appears in 1 contract
Samples: Abl Credit Agreement (Accuride Corp)
Borrowing Base Certificate. Within ten (10a) The Borrower will furnish to the Administrative Agent, no later than (a) 15 days of following the end of each calendar monthfiscal month (or, if such day is not a Business Day, the Borrowers shall deliver next succeeding Business Day), a completed Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such immediately preceding fiscal month as outlined in Exhibit E, (b) the third Business Day of each week (or less frequently if agreed to by the Administrative Agent in its sole discretion), an interim calculation of Eligible Accounts Receivable as of Saturday of the immediately preceding week and (c) if requested by the Administrative Agent, at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably practicable but in no event later than five Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base as of the date so requested, in each case with such supporting documentation and additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(b) The Borrower will furnish to the Administrative Agent an updated at the time of each delivery of the Borrowing Base Certificate certified by a Responsible Officer under clause (a) above (and in any event not later than 15 days following the end of each Borrower fiscal month (or, if such day is not a Business Day, the next succeeding Business day)), a certificate of a Financial Officer in the form attached as Annex [ ] to be true and correct (i) setting forth a calculation Exhibit E hereto specifying, to the best of such Financial Officer's knowledge, as of the Available Commitment as of such date of delivery, and, if included the information reported in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) the aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of CreditUnited States, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days the aggregate cash and cash equivalents of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls Borrower and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (its Subsidiaries held other than in the case United States, (iii) for each of a transfer from one existing PWM Investor this Agreement, the US Revolving Facility Agreement and the European Facilities Agreement, the undrawn amount available to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorbe drawn hereunder and thereunder, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitmentsrespectively, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days accounts payable position of the end of each calendar month or Borrower and the Domestic Subsidiaries and (bv) the reduction of any Investor’s Investor unearned income on the Borrower's balance sheet that represents funded Customer Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything Expenditures relating to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentfuture production.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall calculate Borrowing Base and Availability Amount and deliver to the Administrative Agent an updated (and Administrative Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate certified by a Responsible Officer of (%4) in draft form no later than three (3) Business Days prior to each Borrower Payment Date (which draft shall reflect what is reasonably anticipated to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such final Borrowing Base Certificate will subject only to updates for amounts on deposit in the Revenue Account and any principal, interest and fee invoices issued after the date such draft is required to be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and prior to the applicable Payment Date), which shall be attached to in final form and executed and delivered by 12:00 p.m. (New York time) on such Payment Date (such executed Borrowing Base Certificate, a “Payment Date Borrowing Base Certificate”), showing valuations as of the related Request for Borrowing or Request for Letter close of Creditbusiness of the last day of the calendar month just ended, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii%4) within three (3) Business Days of any event or circumstance in which an Approved Financing has become a Zero Value Approved Financing, showing valuations as of the issuance of Investor Capital Calls to Investors date such Approved Financing became a Zero Value Approved Financing, (delivered to the %4) within three (3) Business Days following any other demand by Administrative Agent along with a summary (which may be requested up to one (1) time per week), showing valuations as of such Investor Capital Calls and calculated after giving effect the date of demand, (d) on the date on which any Notice of Borrowing is delivered or as otherwise required pursuant to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’sSection 4.1.1, Investor Capital Commitment (other than in the case showing valuations as of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or date not more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following earlier than the occurrence actual date of Advance, (ae) within three (3) Business Days after any Exclusion Event and a Responsible Officer Removal Date, (f) upon Borrowers’ request for an Additional Collateral Event, showing valuations as of a Credit Party obtaining date not more than five (5) Business Days prior to the actual knowledge thereof so long as inclusion of such Exclusion Event will result Approved Financing in a the Borrowing Base deficiency or cause all Exclusion Events for such month and (g) as otherwise required pursuant to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 1 contract
Samples: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Borrowing Base Certificate. Within ten Clauses (10a) days and (b) of Section 8.1 of the end of each calendar month, the Borrowers Credit Agreement shall deliver be and they hereby are amended and restated in their entirety to the Administrative Agent an updated Borrowing Base Certificate certified read as follows:
(a) by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation the 30th day of the Available Commitment as August, September and October of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor 2011 and (ii) certifying that no Default or Event the 22nd day of Default existseach month thereafter, or specifying any a Borrowing Base Certificate from Borrower Agent as of the close of business of the previous month, calculating the Borrowing Base as of the last day of such Default or Event of Defaultprevious month, accompanied by such supporting detail and documentation as shall be requested by Administrative Agent in its Credit Judgment; provided, however, that such at any time an Enhanced Reporting Trigger Period is in effect, the Company shall deliver a Borrowing Base Certificate will by Wednesday of each calendar week (or the next Business Day if such day is not a Business Day) calculating the Borrowing Base as of the close of business of the immediately preceding week, accompanied by such supporting detail and documentation as shall be delivered more frequentlyrequested by Administrative Agent in its Credit Judgment;
(b) as soon as available but in no event later than (i) 30 days following the end of each Fiscal Month ending on or about July 31, 2011, August 31, 2011 and September 30, 2011 and (ii) 22 days following the end of each Fiscal Month thereafter: (i) a Schedule of Receivables of the Loan Parties for such Fiscal Month, in connection with any new Borrowing or request for Letter form reasonably satisfactory to Administrative Agent, certified by Borrower Agent, which Schedule of Credit (Receivables shall include an aged trial balance by Account Debtor, a summary and shall be attached to the related Request for Borrowing or Request for Letter detailed aging of Credit, as applicable, Receivables and shall give pro forma effect to such new Borrowing or such new Letter a list of Credit)Approved Account Debtors; and (ii) within three (3) Business Days a Schedule of Petroleum Inventory of the issuance Loan Parties, in form reasonably satisfactory to Administrative Agent, certified by Borrower Agent, specifying each Loan Party’s cost (calculated on a first in, first out basis), at the lower of Investor Capital Calls to Investors (delivered to the cost or market value, of such Loan Party’s Petroleum Inventory by location, and further specifying in-transit Petroleum Inventory and any other information that Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.reasonably request;
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) The Borrower shall provide the Administrative Agent within fifteen (15) days of after the end thereof after the end of each calendar month, fiscal month of the Borrowers shall deliver to the Administrative Agent an updated Borrower with a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding fiscal month of the Borrower, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements in respect of this Credit AgreementBorrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis for the remainder of the current Fiscal Yearsubsequent four-week period; provided further that at any time after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base on a more frequent basis as the Administrative Agent may direct.
(b) At any time after the occurrence and during the continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day): provided that after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base on a more frequent basis as the Administrative Agent may direct.
(c) The Administrative Agent may carry out, at the Borrower’s reasonable expense, onetwo (12) updateupdates to the Initial Inventory Appraisal that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (each, an “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base attributable to Inventory in any period of 12 consecutive months; provided, however, that notwithstanding anything to the contrary in this foregoing limitations (i) at any time on or after the date on which Excess Availability has been less than 30% of the Maximum Credit Agreement or any other Loan Documentfor five (5) consecutive Business Days, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings may carry out, at the Borrower’s expense, twothree (23) Updated Inventory Appraisals in any period of twelve (12) consecutive months, and (ii) at any time during the continuation of an Event of Default, the Administrative Agent may adjust carry out, at the Borrowing Base if Borrower’s reasonable expense, Updated Inventory Appraisals as frequently as determined by the Rating of any Rated Included Investor is downgraded by providing notice to Administrative Agent in its reasonable discretion. In addition, the Borrowers Administrative Agent may carry out, at least the Lenders’ expense, one (1) Business Day additional Updated Inventory Appraisal in advance any period of twelve (12) consecutive months which includes the first day of a Cash Dominion Period. The Borrower shall cooperate with (and cause the Restricted Subsidiaries to cooperate with) the Administrative Agent, in connection with any such Updated Inventory Appraisals. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the effective Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein .
(d) The Administrative Agent may carry out, at the Borrower’s reasonable expense, one (1) investigationtwo (2) investigations and reviewreviews of each Loan Party’s property (including a field audit conducted by the Administrative Agent) (each, a “Field Examination”) in any period of twelve (12) consecutive months; provided, however, that notwithstanding the foregoing limitations, (x)(i) at any time on or after the date on which Excess Availability has been less than 30% of the Maximum Credit, in each case, for five (5) consecutive Business Days or there is a material increase in the amount of Inventory that does not constitute Eligible Inventory (as determined by the Administrative Agent) based on the most recent Field Examination, the Administrative Agent may carry out, at the Borrower’s reasonable expense, twothree (23) Field Examinations in any period of twelve (12) consecutive months, and (ii) at any time during the continuation of an Event of Default, the Administrative Agent may carry out, at the Borrower’s reasonable expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any period of twelve (12) consecutive months which includes the first day of a Cash Dominion Period. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(e) The Borrower shall provide the Administrative Agent as soon as possible after the end of each fiscal month (but in any event within fifteen (15) days after the end thereof), in each case as of the close of business on the last day of the immediately preceding fiscal month, such adjustmentsupporting information with respect to the Collateral in the Borrowing Base as reasonably requested by the Administrative Agent in such detail as is satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10i) days of On the end Effective Date, (ii) not later than 5:00 P.M. (New York time) on or before the 15th day of each calendar month, the Borrowers shall deliver to month thereafter (or at such other times as the Administrative Agent may reasonably request), (iii) at the time of the consummation of a Permitted Acquisition, (iv) not later than 5:00 P.M. (New York time) on or before each Wednesday on a weekly basis during a Compliance Period or after the occurrence and during the continuance of an updated Event of Default and (v) at such other times as US Company may elect (provided that if US Company elects to deliver a borrowing base certificate at any other time pursuant to this clause (v), US Company shall deliver a borrowing base certificate on a weekly basis for the 60 day period following such delivery), a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonably detail) substantially in the form of Exhibit R (each, a “Borrowing Base Certificate”), which shall be prepared (A) as of January 31, 2012 in the case of the initial Borrowing Base Certificate certified by a Responsible Officer and (B) as of the last Business Day of the preceding month in the case of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such subsequent Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditbut adjusted, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor Borrowing Base Certificate delivered in connection with a Permitted Acquisition, to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorreflect any Eligible Accounts, unless such transfer will result in Eligible Inventory, Eligible Machinery and Equipment and Eligible Real Property acquired by a Borrowing Base deficiency or cause all transfers for Party pursuant to such month to equal 1% or Permitted Acquisition) (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the aggregate Investor Capital Commitments, in which case last Business Day of the week preceding such updated delivery). Each such Borrowing Base Certificate shall include the then applicable, marked-to-market Swap Termination Value which the Borrower intends be delivered treated as a Qualified Swap Termination Value for purposes of Section 5.03(d), and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long all such supporting information as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably requested from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and time by the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentAgent.
Appears in 1 contract
Borrowing Base Certificate. Within ten From and after the entry of the Approval Order, furnish to the Administrative Agent as soon as available and in any event (10a) days on or before the twentieth (20th) day of January 2007 and each month thereafter, a monthly Borrowing Base Certificate, as of the last day of the immediately preceding month (which monthly Borrowing Base Certificate shall be furnished regardless of whether weekly Borrowing Base Certificates are required to be furnished pursuant to the immediately succeeding clause (b)), (b) within five (5) Business Days after the end of each calendar monthweek (each calendar week deemed, for purposes hereof, to end on a Friday) that ends during a Reduced Availability Period, a weekly Borrowing Base Certificate (it being understood that certain Borrowing Base Certificate items (to be identified in the Borrowers form of Borrowing Base Certificate) shall deliver to be updated only monthly) and (c) if requested by the Administrative Agent an updated at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditis materially inaccurate, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than soon as reasonably available but in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no event later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as after such Exclusion Event will result in request, a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Certificate showing the Borrowing Base Certificate shall be delivered as of the date so requested, in each case with supporting documentation and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated additional reports with respect to the Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and as the Administrative Agent will monitor shall reasonably request. As used herein, “Reduced Availability Period” means a period beginning on each day when the Available Amount is less than $500,000,000, and ending on the earliest succeeding day on which the Available Amount has been equal to or greater than $500,000,000 for thirty (30) consecutive days. As used herein, “Available Amount” means, at any time, an amount equal to (A) the lesser of (i) the Total First-Priority Commitment at such Ratings time and may adjust (ii) the Borrowing Base if Base, minus (B) the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance sum of the effective date aggregate principal amount of such adjustmentthe outstanding Tranche A Loans, plus the aggregate principal amount of the outstanding Tranche B Loan, plus the LC Exposure.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Borrowing Base Certificate. Within (a) The Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender, on or prior to the 10th day after the last day of each fiscal month, a Borrowing Base Certificate as of the close of business on the last day of the applicable preceding fiscal month, which shall include, among other things, monthly cash flow details for the Eligible Portfolio Assets; provided that after the occurrence and during the continuance of an Event of Default, the Borrower shall deliver a Borrowing Base Certificate (as of the close of business on the last Business Day of the immediately preceding week) on or before the close of business of the third Business Day after the end of each week.
(b) The Borrower may deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender, concurrently with the relevant Borrowing Notice, a pro forma Borrowing Base Certificate as of the close of business on the date the Borrowing Notice under Section 2.05 was delivered, for the purposes of determining the Borrowing Base for such draw of Revolving Loans.
(c) No later than the later of (i) the next scheduled date of delivery of the Borrowing Base Certificate in accordance with Section 5.14(a) and (ii) ten (10) days Business Days after the Borrower obtains actual knowledge of the end incurrence of each calendar monthIndebtedness by 6 Brands or any Subsidiary of 6 Brands pursuant to Section 6.01(p), the Borrowers Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender a pro forma Borrowing Base Certificate showing the incurrence of such Indebtedness and any assets purchased with the proceeds thereof. Prior to delivery by the Borrower of the first Borrowing Base Certificate following delivery of financial statements pursuant to either Section 5.01(a)(i) or Section 5.01(b)(i) covering the fiscal quarter in which such Indebtedness was incurred, (i) the Administrative Agent shall be entitled to establish a Reserve in the amount of 110% of the principal amount of such Indebtedness (and following delivery of such Borrowing Base Certificate, no such Reserve shall be taken) and (ii) for the avoidance of doubt, any assets purchased with the proceeds of Indebtedness referenced in this Section 5.14(c) shall be considered in determining the Asset Value of the Equity Interests in 6 Brands.
(d) In connection with any transaction involving the purchase, Disposition or other change in the composition of Portfolio Assets that contribute more than 10% of the Borrowing Base, the Borrower shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified for delivery by a Responsible Officer of the Administrative Agent to each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of deliveryLender, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within later than three (3) Business Days of after the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary date of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’stransaction, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate as of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to close of business on the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmenttransaction.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment So long as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default existsis then continuing, or specifying as soon as available, and in any such event no later than 5:00 p.m. (New York time) on the twelfth Business Day of each Fiscal Month, a Borrowing Base Certificate for the Borrower as of the last day of the previous Fiscal Month.
(b) Upon the occurrence of a Weekly Trigger Event, so long as no Default or Event of Default; providedDefault is then continuing, however, that such no later than 5:00 p.m. (New York time) on each Tuesday (other than any Tuesday occurring during a week in which a Borrowing Base Certificate will be is delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Creditunder Section 1 above), as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers Certificate for such month to equal 1% or more of the aggregate Investor Capital CommitmentsBorrower, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long prepared as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or business for the prior week.
(bc) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding Notwithstanding anything to the contrary in this Credit Agreement Annex E, if a Default or any other Loan DocumentEvent of Default has occurred, no later than 5:00 p.m. (New York time) on the Business Day immediately following the date on which the daily reporting obligation arose, a Borrowing Base Certificate, prepared by the Borrower is not as of the close of business on the immediately preceding Business Day, provided that the Borrower shall be required to monitor the Ratings update those portions of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base Certificate relating to Inventory Reconciliation, Inventory Turnover and Accounts Payable Aging only as and when requested by the Agent (and in any event on at least a weekly basis). The Borrower shall be required to deliver a daily Borrowing Base Certificate (and, if requested by the Rating of any Rated Included Investor is downgraded Agent, such reports) under this clause (c) by providing notice no later than 5:00 p.m. (New York time) on each Business Day thereafter (each such certificate relating to the Borrowers at least one immediately preceding Business Day) unless and until such Default or Event of Default is no longer outstanding, in which case the Borrower shall be required to deliver to the Agent Borrowing Base Certificates as and when required by clauses (a) and (b) of this Section 1) Business Day in advance of the effective date of such adjustment.
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Borrowing Base Certificate. Within ten On (10i) days each Business Day, current as of the end close of business on the immediately preceding Business Day (except (A) the Accounts and Inventory of Crave Entertainment Group, Inc. and its Subsidiaries, which shall be current as of the close of business on the second preceding Business Day, (B) the Accounts of Xxxxxxxxx UK Limited, which shall be current on a weekly basis and (C) the accounts payable aging report of each calendar monthCredit Party, which shall be current on a weekly basis), (x) a Borrowing Base Certificate, supported by schedules showing the Borrowers shall deliver to derivation thereof and containing such detail and other information as the Administrative Agent may reasonably request from time to time, (y) an updated Borrowing Base Certificate certified by a Responsible Officer Accounts aging report of each Borrower to be true Credit Party (collectively and correct by individual customer), and (iz) setting forth a calculation an accounts payable aging report of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor each Credit Party (collectively and by individual vendor); and (ii) certifying that no Default or Event the twentieth day of Default existseach Fiscal Month, or specifying any if such Default or Event date is not a Business Day, the next succeeding Business Day, a final Borrowing Base Certificate, current as of Default; providedthe close of business on the last Business Day of the immediately preceding Fiscal Month, howeversupported by schedules showing the derivation thereof and containing such detail and other information as Agents may reasonably request from time to time, that such together with all accrual updates since the previous Borrowing Base Certificate will be delivered more frequently: pursuant to this clause (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Creditii); provided that (iiA)
(1) within three (3) Business Days of the issuance of Investor Working Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than Borrowing Base set forth in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered effective from and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to including the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as date such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required is duly received by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and the Agents but not including the date on which a updated subsequent Borrowing Base Certificate provided) within ten (10) days is received by the Agents, unless the Agents dispute the eligibility of any property included in the calculation of the end Working Capital Borrowing Base or the valuation thereof, and (2) in the event of each calendar month any dispute about the eligibility of any property included in the calculation of the Working Capital Borrowing Base or the valuation thereof, the Agents’ good faith business judgment shall control, and (bB) for the period from September 19, 2008 (the “Start Date”) until October 1, 2008 (the “End Date”), the following adjustments shall be made to the calculation of the Working Capital Borrowing Base: (x) the reduction amount of any Investor’s Investor Capital Commitment in accordance with “Eligible Accounts” shall be determined on the terms Start Date and reduced on a daily basis by the amount of this Cash received by the Credit Agreement; providedParties on each such day until the End Date, however, and (y) the percentage of Accounts that notwithstanding anything do not constitute “Eligible Accounts” shall be determined on the Start Date and deemed to apply until the contrary in this End Date;”
(e) Section 5.21 of the Credit Agreement or any other Loan Document, the Borrower is not required hereby amended and restated to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day read in advance of the effective date of such adjustment.its entirety as follows:
Appears in 1 contract
Borrowing Base Certificate. Within ten (10a) days of Borrower shall provide the Administrative Agent with the following documents in a form and detail reasonably satisfactory to Administrative Agent: as soon as possible after the end of each calendar month, fiscal month (but in any event within fifteen (15) Business Days after the Borrowers shall deliver to the Administrative Agent an updated end thereof) a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding fiscal month, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements in respect of this Credit AgreementBorrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis until January 15th of the next succeeding calendar year.
(b) At any time during the occurrence and continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on the last day of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day).
(c) The Borrower shall also cooperate with (and cause its Subsidiaries to cooperate with) the Administrative Agent, in connection with updates to the Initial Inventory Appraisal that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (the “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base attributable to Inventory and the Administrative Agent may carry out, at the Borrower’s expense, one (1) Updated Inventory Appraisal in any period of 12 consecutive months; provided, however, that notwithstanding anything the foregoing limitations (x)(i) at any time on or after the date on which Excess Availability has been less than the greater of (A) $25,000,000 and (B) 25% of the Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Updated Inventory Appraisals in any period of 12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Updated Inventory Appraisals as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the contrary in this Credit Agreement or any other Loan Documentforegoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Updated Inventory Appraisal in any period of 12 consecutive months. The Borrower is not required shall furnish to monitor the Ratings Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of Included Investorsthe Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein .
(d) The Administrative Agent may carry out investigations and reviews of each Loan Party’s property at the reasonable expense of the Borrower (including field audits conducted by the Administrative Agent) (“Field Examination”) and the Administrative Agent will monitor such Ratings and may adjust carry out, at the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least Borrower’s expense, one (1) Business Day Field Examination in advance any period of 12 consecutive months; provided, however, that notwithstanding the foregoing limitations, (x)(i) at any time on or after the date on which Excess Availability has been less than the greater of (A) $25,000,000 and (B) 25% of the effective date Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Field Examinations in any period of such adjustment12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any period of 12 consecutive months. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
Appears in 1 contract
Samples: Credit Agreement (J Crew Group Inc)
Borrowing Base Certificate. Within ten (10a) days of By 12:00 noon, New York City time three Business Days after the end last day of each calendar monthweek (and on any other date on which the Agent reasonably requests), the Borrowers Administrative Borrower shall deliver furnish to the Administrative Agent an updated a certificate, substantially in the form of Exhibit D hereto ("Borrowing Base Certificate Certificate"), certified by a Responsible Officer of each Borrower to be as true and correct (i) by a Designated Financial Officer, setting forth a calculation the Borrowing Base and the other information required therein as of each Borrower's close of business on the last day of such week, together with such other information with respect to the Inventory and Accounts Receivable of the Available Commitment Borrowers as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default45 52 Agent may reasonably request; provided, however, that such in the event that Availability is at least $50,000,000 for each day during a period of eight consecutive weeks, the Borrowers may thereafter, upon notice to the Agent, elect to submit Borrowing Base Certificate will be delivered more frequently: (i) Certificates on a monthly basis, in connection with any new Borrowing or request for Letter of Credit (and which event the Administrative Borrower shall be attached submit to the related Request for Borrowing or Request for Letter of CreditAgent by 12:00 noon New York City time, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); fifteen (ii) within three (315) Business Days after the last day of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in each month a Borrowing Base deficiency Certificate, certified as described above setting forth the Borrowing Base and other information required therein as of each Borrower's close of business on the last day of such month, together with such other information as the Agent may reasonably request.
(b) In the event of any dispute about the eligibility of any asset for inclusion in the Borrowing Base or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitmentsvaluation thereof, the Agent's good faith judgment shall control.
(c) The Borrowing Base set forth in which case such updated a Borrowing Base Certificate shall be delivered effective from and including the date such Borrowing Base Certificate is duly received by the Agent to but not including the date on which a subsequent Borrowing Base Certificate is duly received by the Agent, unless the Agent disputes the eligibility of any mandatory prepayment required asset for inclusion in the Borrowing Base or the valuation thereof by this Credit Agreement shall be madenotice of such dispute to the Borrowers, in each casewhich case the value of such asset shall, prior at the discretion of the Borrowers, either not be included in the Borrowing Base or be included in the Borrowing Base with a value reasonably acceptable to the effectiveness thereof); and Agent.
(ivd) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Each Borrowing Base Certificate shall be delivered accompanied by backup schedules showing the derivation thereof and any mandatory prepayment required by this Credit Agreement shall be made) containing such detail and otherwise, Exclusion Events such other and further information as the Agent may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything reasonably request from time to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmenttime.
Appears in 1 contract
Samples: Credit Agreement (Gs Technologies Operating Co Inc)
Borrowing Base Certificate. Within ten (10a) The Borrower will furnish to the Administrative Agent, no later than (i) 15 days of following the end of each calendar monthfiscal month (or, if such day is not a Business Day, the Borrowers next succeeding Business Day), a completed Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such immediately preceding fiscal month as outlined in Exhibit E, (ii) if Available Commitments shall deliver be $200,000,000 or less for each of five consecutive Business Days, on the Wednesday (or if such Wednesday is not a Business Day, on the next succeeding Business Day) of the next succeeding week following the last day of such five consecutive Business Day period a Borrowing Base Certificate calculating “Available accounts receivable” and Available Cash as of Saturday of the immediately preceding week and showing “Available inventory” as of the most recently delivered month-end Borrowing Base Certificate, and (iii) if requested by the Administrative Agent, at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably practicable but in no event later than five Business Days after such request, a completed Borrowing Base Certificate showing the Borrowing Base and Available Cash as of the date so requested, in each case with such supporting documentation and additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request.
(b) The Borrower will furnish to the Administrative Agent an updated at the time of each delivery of the Borrowing Base Certificate certified by a Responsible Officer under clause (a) above (and in any event not later than 15 days following the end of each Borrower fiscal month (or, if such day is not a Business Day, the next succeeding Business Day)), a certificate of a Financial Officer in the form attached as Annex I to be true and correct (i) setting forth a calculation Exhibit E hereto specifying, to the best of such Financial Officer’s knowledge, as of the Available Commitment as of such date of delivery, and, if included the information reported in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) the aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of CreditUnited States, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days the aggregate cash and cash equivalents of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls Borrower and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (its Subsidiaries held other than in the case United States, (iii) for each of a transfer from one existing PWM Investor this Agreement and the European Facilities Agreement, the undrawn amount available to another existing PWM Investor or from an existing PWM Investor to a new PWM Investorbe drawn hereunder and thereunder, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitmentsrespectively, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days accounts payable position of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings Domestic Subsidiaries and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1v) Business Day in advance of the effective date of such adjustmentAvailable Cash.
Appears in 1 contract
Samples: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Borrowing Base Certificate. Within ten Borrowers shall deliver to Bank on the last day of each month, commencing in the month of August, 2005, a borrowing base certificate in the form of Exhibit A attached to the Eighth Amendment and incorporated herein by reference (10a “Borrowing Base Certificate”) days setting forth:
(i) the Borrowing Base and its components as of the end of each calendar the immediately preceding month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and ;
(ii) certifying that no Default or Event the aggregate principal amount of Default exists, or specifying any such Default or Event all outstanding Loans and the aggregate face amount of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (all issued and shall be attached to the related Request for Borrowing or Request for Letter outstanding Letters of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); and
(iii) promptly following a transfer of any Included Investor’sthe difference, Investor Capital Commitment (other than in if any, between the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of and the aggregate Investor Capital Commitments, principal amount of all outstanding Loans plus the aggregate face amount of all issued and outstanding Letters of Credit. The Borrowing Base shown in which case such updated Borrowing Base Certificate shall be and remain the Borrowing Base hereunder until the next Borrowing Base Certificate is delivered and any mandatory prepayment required by this Credit Agreement to Bank, at which time the Borrowing Base shall be made, the amount shown in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a subsequent Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Certificate. Each Borrowing Base Certificate shall be delivered certified (subject to normal year-end adjustments) as to truth and any mandatory prepayment required accuracy by this Credit the President, principal financial officer or controller of each of the Borrowers. All references in the Loan Agreement and the other Transaction Documents to the “Borrowing Base Certificate” and other references of similar import shall hereafter be amended and deemed to refer to a Borrowing Base Certificate in the form of the Borrowing Base Certificate, as amended and restated in the form attached hereto as Exhibit A.
9. The last sentence of Section 3.2 of the Loan Agreement shall be made) deleted in its entirety and otherwise, Exclusion Events may in its place shall be reported (and a updated Borrowing Base Certificate provided) within ten (10) days substituted the following: Contemporaneously with the execution of the end Eighth Amendment (amending this Agreement), Borrowers shall execute and deliver to Bank a Note of each calendar month or (b) the reduction Borrowers dated as of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; providedAugust 22, however, that notwithstanding anything 2005 and payable jointly and severally to the contrary order of Bank in this Credit Agreement the original principal amount of Fifteen Million Dollars ($15,000,000.00) in the form attached as Exhibit B to such Eighth Amendment and incorporated herein by reference (as the same may from time to time be amended, modified, extended or any other Loan Documentrenewed, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment“Note”).
Appears in 1 contract
Samples: Credit Agreement (Virbac Corp)
Borrowing Base Certificate. Within ten (10a) The Borrower shall provide the Administrative Agent within fifteen (15) days of after the end thereof after the end of each calendar month, fiscal month of the Borrowers shall deliver to the Administrative Agent an updated Borrower with a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding fiscal month of the Borrower, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements in respect of this Credit AgreementBorrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis for the remainder of the current Fiscal Year; provided further that at any time after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base on a more frequent basis as the Administrative Agent may direct.
(b) At any time after the occurrence and during the continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day): provided that after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base on a more frequent basis as the Administrative Agent may direct.
(c) The Administrative Agent may carry out, at the Borrower’s reasonable expense, one (1) update to the Initial Inventory Appraisal that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (each, an “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base attributable to Inventory in any period of 12 consecutive months; provided, however, that notwithstanding anything to the contrary in this foregoing limitations (i) at any time on or after the date on which Excess Availability has been less than 30% of the Maximum Credit Agreement or any other Loan Documentfor five (5) consecutive Business Days, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor may carry out, at the Borrower’s expense, two (2) Updated Inventory Appraisals in any period of twelve (12) consecutive months, and (ii) at any time during the continuation of an Event of Default, the Administrative Agent may carry out, at the Borrower’s reasonable expense, Updated Inventory Appraisals as frequently as determined by the Administrative Agent in its reasonable discretion. The Borrower shall cooperate with (and cause the Restricted Subsidiaries to cooperate with) the Administrative Agent, in connection with any such Ratings Updated Inventory Appraisals. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and may adjust calculation of the Borrowing Base if the Rating including correct and complete copies of any Rated Included Investor is downgraded by providing notice invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein .
(d) The Administrative Agent may carry out, at the Borrowers at least Borrower’s reasonable expense, one (1) Business Day investigation and review of each Loan Party’s property (including a field audit conducted by the Administrative Agent) (each, a “Field Examination”) in advance any period of twelve (12) consecutive months; provided, however, that notwithstanding the foregoing limitations, (x)(i) at any time on or after the date on which Excess Availability has been less than 30% of the effective date Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s reasonable expense, two (2) Field Examinations in any period of twelve (12) consecutive months, and (ii) at any time during the continuation of an Event of Default, the Administrative Agent may carry out, at the Borrower’s reasonable expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any period of twelve (12) consecutive months which includes the first day of a Cash Dominion Period. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(e) The Borrower shall provide the Administrative Agent as soon as possible after the end of each fiscal month (but in any event within fifteen (15) days after the end thereof), in each case as of the close of business on the last day of the immediately preceding fiscal month, such adjustmentsupporting information with respect to the Collateral in the Borrowing Base as reasonably requested by the Administrative Agent in such detail as is satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBorrowing); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, ’s Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party Borrower obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp.)
Borrowing Base Certificate. Within ten (10a) days of Borrower shall provide the Administrative Agent with the following documents in a form and detail reasonably satisfactory to Administrative Agent: as soon as possible after the end of each calendar month, fiscal month (but in any event within fifteen (15) Business Days after the Borrowers shall deliver to the Administrative Agent an updated end thereof) a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability as of the last Business Day of the immediately preceding fiscal month, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements in respect of this Credit AgreementBorrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis until January 15th of the next succeeding calendar year.
(b) At any time during the occurrence and continuation of a Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on the last day of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day).
(c) The Borrower shall also cooperate with (and cause its Subsidiaries to cooperate with) the Administrative Agent, in connection with updates to the Initial Inventory Appraisal that shall be in form and detail and from third-party appraisers reasonably acceptable to the Administrative Agent (the “Updated Inventory Appraisal”) for the purpose of determining the amount of the Borrowing Base attributable to Inventory and the Administrative Agent may carry out, at the Borrower’s expense, one (1) Updated Inventory Appraisal in any period of 12 consecutive months; provided, however, that notwithstanding anything the foregoing limitations (x)(i) at any time on or after the date on which Excess Availability has been less than the greater of (A) $25,000,000 and (B) 25% of the Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Updated Inventory Appraisals in any period of 12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Updated Inventory Appraisals as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the contrary in this Credit Agreement or any other Loan Documentforegoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Updated Inventory Appraisal in any period of 12 consecutive months. The Borrower is not required shall furnish to monitor the Ratings Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of Included Investorsthe Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(d) The Administrative Agent may carry out investigations and reviews of each Loan Party’s property at the reasonable expense of the Borrower (including field audits conducted by the Administrative Agent) (“Field Examination”) and the Administrative Agent will monitor such Ratings and may adjust carry out, at the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least Borrower’s expense, one (1) Business Day Field Examination in advance any period of 12 consecutive months; provided, however, that notwithstanding the foregoing limitations, (x)(i) at any time on or after the date on which Excess Availability has been less than the greater of (A) $25,000,000 and (B) 25% of the effective date Maximum Credit, in each case, for five (5) consecutive Business Days, the Administrative Agent may carry out, at the Borrower’s expense, two (2) Field Examinations in any period of such adjustment12 consecutive months, and (ii) at any time during the continuation of a Specified Event of Default, the Administrative Agent may carry out, at the Borrower’s expense, Field Examinations as frequently as determined by the Administrative Agent in its reasonable discretion and (y) in addition to the foregoing clause (x), the Administrative Agent may carry out, at the Lenders’ expense, one (1) additional Field Examination in any period of 12 consecutive months. The Borrower shall furnish to the Administrative Agent any information that the Administrative Agent may reasonably request regarding the determination and calculation of the Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10) days of the end On Monday of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit week (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor clause (i) below, together with each Funding Notice or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in Issuance Notice): (i) a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more Certificate, current as of the aggregate Investor Capital Commitmentsclose of business on the last Business Day of the immediately preceding week (or Friday of the immediately preceding week, as the case may be), supported by schedules showing the derivation thereof and containing such detail and other information as the Administrative Agent or the Borrowing Base Agent may reasonably request from time to time; provided that (1) the Borrowing Base set forth in which case such updated the Borrowing Base Certificate shall be delivered effective from and including the date such Borrowing Base Certificate is duly received by the Agents and the Borrowing Base Agent but not including the date on which a subsequent Borrowing Base Certificate is received by the Agents and the Borrowing Base Agent, unless any mandatory prepayment required Agent or the Borrowing Base Agent disputes the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof by this Credit Agreement notice of such dispute to Borrower, (2) in the event of any dispute about the eligibility of any property included in the calculation of the Borrowing Base or the valuation thereof, the more conservative approach of such Agent's or Borrowing Base Agent's good faith business judgment shall control and (3) the Inventory shall be madeupdated on a monthly basis component of the Borrowing Base; and (ii) until such time as Availability exceeds $10,000,000 for at least 30 consecutive days, and thereafter upon the Administrative Agent's request, a rolling thirteen (13) week cash forecast, in each case, prior all in detail and in form reasonably satisfactory to the effectiveness thereof); Administrative Agent and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency Agent. Without limiting any other rights of Administrative Agent and the Borrowing Base Agent, upon Administrative Agent's or cause all Exclusion Events for such month to equal 1% Borrowing Base Agent's request, Borrower shall provide Administrative Agent and Borrowing Base Agent on a daily basis with a schedule of Accounts, collections received and credits issued on a daily basis and inventory reports prepared on a monthly or more frequent basis as the Administrative Agent or Borrowing Base Agent may, in good faith, request in the event that at any time either (such schedule of aggregate Investor Capital Commitments Accounts, collections received and credits issued and inventory report, collectively, the “Daily Collateral Reporting”): (in which case1) an Event of Default or Default, such updated shall exist or have occurred, or (2) Borrower shall have failed to deliver any Borrowing Base Certificate shall be delivered and in accordance with this Section 5.1(q), or (3) upon Administrative Agent's or Borrowing Base Agent's good faith belief, any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated information contained in any Borrowing Base Certificate providedprovided under this Section 5.1(q) within ten (10) days of the end of each calendar month is incomplete, inaccurate or misleading, or (b4) Availability is less than $10,000,000 (it being understood that once the Borrower is required by Administrative Agent or Borrowing Agent to provide Daily Collateral Reporting on a daily basis in accordance with this Section 5.1(q), the Borrower shall continue to provide Daily Collateral Reporting to Administrative Agent and Borrowing Base Agent on a daily basis unless and until (x) no Event of Default or Default has occurred and are then continuing, (y) Availability exceeds $10,000,000 for at least 30 consecutive days, and (z) the reduction of any Investor’s Investor Capital Commitment Borrower has otherwise complied with its obligation to deliver Daily Collateral Reporting to Administrative Agent and Borrowing Base Agent in accordance with the terms of this Credit Agreementprovisions hereof and such Daily Collateral Reporting is complete and accurate (and not misleading) in all respects, in Administrative Agent’s and Borrowing Base Agent's reasonable discretion; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Documentthereafter, the Borrower is not required shall deliver Borrowing Base Certificates in accordance with this Section 5.1(q)). Notwithstanding the foregoing, the parties to monitor this Agreement hereby agree that the Ratings of Included Investors, and the Borrower shall provide Daily Collateral Reporting to Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if Agent on a daily basis until the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one conditions in sub-clauses (1x), (y) Business Day in advance of the effective date of such adjustment.and (z) are satisfied;
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Proliance International, Inc.)
Borrowing Base Certificate. Within ten (10a) days of the end of each calendar month, the Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment So long as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default existsis then continuing, or specifying as soon as available, and in any such event no later than 5:00 p.m. (New York time) on the twelfth Business Day of each Fiscal Month, a Borrowing Base Certificate for the Borrower as of the last day of the previous Fiscal Month.
(b) So long as no Default or Event of Default; providedDefault is then continuing, however, that such no later than 5:00 p.m. (New York time) on each Tuesday (other than any Tuesday occurring during a week in which a Borrowing Base Certificate will be is delivered more frequently: (i) in connection with any new under Section 1 above), a Borrowing or request Base Certificate for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of CreditBorrower, prepared as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance end of Investor Capital Calls business for the prior week, updating only those portions of the most recent monthly Borrowing Base Certificate delivered pursuant to Investors (delivered Section 1(a) above with respect to those portions of the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); Borrowing Base described in clauses (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later of the definition of such term. In addition, at any time when Net Liquidity Availability is less than five (5) Business Days following the occurrence greater of (aA) any Exclusion Event $20,000,000, and a Responsible Officer (B) 20% of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a the Maximum Amount, the Borrower shall also update those portions of the Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments described in clauses (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madei) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate providedii) within ten (10) days of the end definition of each calendar month or such term.
(bc) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding Notwithstanding anything to the contrary in this Credit Agreement Annex E, if a Default or any other Loan DocumentEvent of Default has occurred, no later than 5:00 p.m. (New York time) on the Business Day immediately following the date on which the daily reporting obligation arose, a Borrowing Base Certificate, prepared by the Borrower is not as of the close of business on the immediately preceding Business Day, provided that the Borrower shall be required to monitor the Ratings update those portions of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base Certificate relating to Inventory Reconciliation, Inventory Turnover, and Accounts Payable Aging only as and when requested by the Agent (and in any event on at least a weekly basis). The Borrower shall be required to deliver a daily Borrowing Base Certificate (and, if requested by the Rating of any Rated Included Investor is downgraded Agent, such reports) under this clause (c) by providing notice no later than 5:00 p.m. (New York time) on each Business Day thereafter (each such certificate relating to the Borrowers at least one immediately preceding Business Day) unless and until such Default or Event of Default is no longer outstanding, in which case the Borrower shall be required to deliver to the Agent Borrowing Base Certificates as and when required by clauses (a) and (b) of this Section 1) Business Day in advance of the effective date of such adjustment.
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Borrowing Base Certificate. Within ten (10a) The Borrower shall provide the Administrative Agent and the FILO Agent within fifteen (15) days of after the end thereof after the end of each calendar month, fiscal month of the Borrowers shall deliver to the Administrative Agent an updated Borrower with a Borrowing Base Certificate certified setting forth the calculation of the Borrowing Base and of Excess Availability and, to the extent FILO Loan is outstanding, of the FILO Borrowing Base, in each case, as of the last Business Day of the immediately preceding fiscal month of the Borrower, duly completed and executed by a Responsible Officer of each Borrower the Borrower, together with all schedules required pursuant to be true and correct (i) setting forth a calculation the terms of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: duly completed (i) in connection with any new such certification, a “Monthly Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of CreditBase Certificate”); (ii) within three (3) Business Days of provided that the issuance of Investor Capital Calls Borrower may elect, at its option, to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a deliver more frequent Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital CommitmentsCertificates, in which case such updated Borrowing Base Certificate Certificates shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment computed in accordance with the terms requirements in respect of this Credit AgreementBorrowing Base Certificates required to be delivered during the continuance of a Weekly Monitoring Event and the Borrower shall continue to deliver Borrowing Base Certificates on a weekly basis for the subsequent four-week period; provided, however, provided further that notwithstanding anything to at any time after the contrary in this Credit Agreement or any other Loan Documentoccurrence and during the continuation of a Specified Event of Default, the Borrower is not required to monitor the Ratings of Included Investors, and shall provide the Administrative Agent will monitor such Ratings and may adjust the FILO Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice and, to the Borrowers at least one (1) Business Day in advance extent FILO Loan is outstanding, of the effective date FILO Borrowing Base, on a more frequent basis as the Administrative Agent or the FILO Agent may direct.
(b) At any time after the occurrence and during the continuation of such adjustmenta Weekly Monitoring Event, the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day): provided that after the occurrence and during the continuation of a Specified Event of Default, the Borrower shall provide the Administrative Agent and the FILO Agent with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base and, to the extent FILO Loan is outstanding, of the FILO Borrowing Base, on a more frequent basis as the Administrative Agent or the FILO Agent may direct.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10i) days On the Effective Date, (ii) unless clause (iii) below applies, each month, on or before the 12th Business Day of each such month, (iii) during any period in which a Weekly Borrowing Base Period is in effect, not later than 5:00 P.M. on or before the third Business Day of each such week (or at such other times as the Administrative Agent may request) and (iv) at the time of the end consummation of a disposition pursuant to Section 10.02(e) in excess of the $35,000,000 amount specified in such Section (in each case under clauses (i)-(iv) hereof with supporting calculations in reasonable detail including, without limitation, with respect to cash balances, accounts receivable, accounts payable and inventory amounts), substantially in the form of Exhibit N (each, a “Borrowing Base Certificate”), which shall be prepared as of the last Business Day of the preceding month in the case of each calendar monthsubsequent Borrowing Base Certificate (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week preceding such delivery). Each such Borrowing Base Certificate shall include such other supporting information as may be reasonably requested from time to time by the Administrative Agent or the Collateral Agent. Simultaneously with the delivery of each (x) borrowing request pursuant to Section 2.03 and (y) Borrowing Base Certificate (to the extent any Loans are then outstanding), Borrowers shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true report reflecting all additional Investment Grade Account Debtors and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and (ii) certifying that all Account Debtors which are no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be madelonger Investment Grade Account Debtors, in each case, since the date of the delivery of the immediately prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwiseor borrowing request, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, as applicable. Borrowers and the Administrative Agent will monitor hereby agree that the delivery of any Borrowing Base Certificate through Administrative Agent’s electronic platform or portal, subject to Administrative Agent’s authentication process, by such Ratings and other electronic method as may adjust be approved by Administrative Agent from time to time in its sole discretion, or by such other electronic input of information necessary to calculate the Borrowing Base as may be approved by Administrative Agent from time to time in its sole discretion, shall in each case be deemed to satisfy the obligation of Borrowers to deliver such Borrowing Base Certificate, with the same legal effect as if the Rating of any Rated Included Investor is downgraded such Borrowing Base Certificate had been manually executed by providing notice Borrowers and delivered to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentAdministrative Agent.
Appears in 1 contract
Borrowing Base Certificate. Within ten (10i) As soon as available, but in any event within twenty (20) days after the end of each month, a Borrowing Base Certificate, together with a Back-Log Spreadsheet and a Take-Out Spreadsheet, providing, as of the end of each calendar the prior month, (A) megawatts installed, (B) megawatts added, (C) net megawatts backlog, (D) megawatts terminated, (E) the Borrowers Borrowing Base, (F) the NYGB Borrowing Base, (G) the Revolving Exposure of NYGB and of each other Lender, (H) the NYGB Borrowing Base Availability, (I) the Total Outstandings, (J) the Unencumbered Liquidity, (K) any contracts included in Project Back-Log that are ineligible for Tranching under any open Tax Equity Partnership (including the number, face value and reasons for rejection) and (L) such other supporting information as reasonably requested by the Administrative Agent, the Collateral Agent or the Lenders, each prepared as at the end of such month, duly certified by a Responsible Officer that is the chief executive officer, chief financial officer, treasurer or controller of the Borrowers. Notwithstanding the foregoing, in the event of a Borrowing Base Deficiency, for the period during which the Borrowing Base Deficiency exists, the Loan Parties shall deliver to the Administrative Agent an updated Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basisAgent, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor Collateral Agent and (ii) certifying that no Default or Event of Default exists, or specifying any such Default or Event of Default; provided, however, that the Lenders such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached to the related Request for Borrowing or Request for Letter of Credit, as applicable, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); on a bi-weekly basis.
(ii) within three Within twenty (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (1020) days of after the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance month, together with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if Certificate delivered pursuant to Section 6.02(m)(i) above, or more frequently as requested by the Rating Administrative Agent, the Collateral Agent or the Required Lenders, (A) the monthly aging of any Rated Included Investor is downgraded by providing notice the accounts receivable and accounts payable of the Loan Parties, (B) an aged listing of accounts related to the Borrowers at least one Eligible Hawaii Tax Credit Receivables, the Eligible Customer Upfront Payment Receivables, the Eligible Trade Accounts and the Eligible Project Back-Log and (1C) Business Day in advance of the effective date of such adjustmentan Inventory report.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Borrowing Base Certificate. Within ten (10i) As soon as available, but in any event within twenty (20) days after (x) if the Borrowing Base Threshold is satisfied, the end of the current calendar quarter and (y) if the Borrowing Base Threshold is not satisfied, the end of the current month, a Borrowing Base Certificate, together with a Back-Log Spreadsheet and a Take-Out Spreadsheet, providing, as of the end of each calendar the prior month, (A) megawatts installed, (B) megawatts added, (C) net megawatts backlog, (D) megawatts terminated, (E) the Borrowers Borrowing Base, (F) the Total Outstandings, (G) the Unencumbered Liquidity, (H) any contracts included in Project Back-Log that are ineligible for Tranching of Projects under any open Tax Equity Partnership (including the number, face value and reasons for rejection), (I) the NYGB Borrowing Base, (J) the Revolving Exposure of NYGB and of each other Lender, (K) the NYGB Borrowing Base Availability and (L) such other supporting information as reasonably requested by the Administrative Agent, the Collateral Agent or the Lenders, each prepared as at the end of such month, duly certified by a Responsible Officer that is the chief executive officer, chief financial officer, treasurer or controller of the Borrower. Notwithstanding the foregoing, in the event of a Borrowing Base Deficiency, for the period during which the Borrowing Base Deficiency exists, the Loan Parties shall deliver to the Administrative Agent, the Collateral Agent an updated and the Lenders such Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as of such date of delivery, and, if included in the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly bi-weekly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor and .
(ii) certifying that no Default or Event of Default existsTogether with each Borrowing Base Certificate delivered pursuant to Section 6.02(m)(i) above, or specifying more frequently as requested by the Administrative Agent, the Collateral Agent or the Required Lenders, (A) the monthly or quarterly, as applicable, aging of the accounts receivable and accounts payable of the Loan Parties, (B) an aged listing of accounts related to the Eligible Direct Payment Receivables, the Eligible Customer Upfront Payment Receivables, the Eligible Trade Accounts and the Eligible Project Back-Log and (C) an Inventory report.
(1) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (2) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, each Arranger, the L/C Issuer and the Lenders to treat such Default Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or Event its securities for purposes of Default; United States federal and state securities laws (provided, however, that to the extent such Borrowing Base Certificate will Borrower Materials constitute Information, they shall be delivered more frequently: treated as set forth in Section 11.07); (3) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (4) the Administrative Agent and any Affiliate thereof and each Arranger shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, (i) in connection with any new Borrowing or request for Letter of Credit (and the Borrower shall be attached under no obligation to the related Request for Borrowing or Request for Letter of Credit, as applicable, mark any Borrower Materials “PUBLIC” and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3any materials furnished pursuant to Section 6.02(g) Business Days of the issuance of Investor Capital Calls to Investors (delivered to may be treated by the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than in Lenders as if the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment same had been marked “PUBLIC” in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentherewith.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Borrowing Base Certificate. Within ten (10) days [If a request of an A/R Revolving Loan or Real Estate Revolving Loan under Section 2.1 or Section 2.2 or Swing Loan under Section 2.4, add the end of each calendar month, the Borrowers shall deliver to the Administrative Agent following: Attached hereto is [an updated A/R] [a Real Estate] Borrowing Base Certificate certified by a Responsible Officer of each Borrower to be true and correct (i) setting forth a calculation of the Available Commitment as [A/R/Real Estate] Borrowing Base Availability after giving effect to the [A/R/Real Estate] Revolving Loan requested hereby. After giving effect to the making of such date Loan, (a) the Aggregate A/R Revolving Credit Obligations shall not be greater than the lesser of delivery, and, if included in (i) the Borrowing Base, certifying the aggregate Recallable Capital included in the Unfunded Capital Commitments and, on a monthly basis, the transfer of Investor Capital Commitments from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor Total A/R Revolving Loan Commitment and (ii) certifying the A/R Borrowing Base Availability, and (b) the Aggregate Real Estate Revolving Credit Obligations shall not be greater than the lesser of (i) the Total Real Estate Revolving Loan Commitment and (ii) the Real Estate Borrowing Base Availability.] [INCLUDE IF NOTICE IS DELIVERED IN CONNECTION WITH A DRAW: 5. Representations True. The undersigned certifies, represents and agrees, on behalf of Borrowers, that each of the representations and warranties made by any Loan Party contained in the Credit Agreement, the other Loan Documents or in any document or instrument delivered by or on behalf of any Loan Party to Administrative Agent, Revolving Agent or the Lenders pursuant to or in connection with the Credit Agreement shall be true and correct in all material respects both as of the date as of which they were made and shall also be true and correct in all material respects as of the time of the making of such Loan, with the same effect as if made at and as of that time, except to the extent of changes in the facts and circumstances after the date such representation and warranty was made that resulted from actions or inactions not prohibited by the Credit Agreement (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date), and no Default or Event of Default existsshall have occurred and be continuing.] [5/6]. Other Conditions. The undersigned certifies, or specifying any such Default or Event represents and agrees, on behalf of Default; provided, howeverXxxxxxxxx, that such Borrowing Base Certificate will be delivered more frequently: (i) in connection with any new Borrowing or request for Letter of Credit (and shall be attached all conditions to the related Request for Borrowing making or Request for Letter of Creditconversion, as applicablethe case may be, and shall give pro forma effect to such new Borrowing or such new Letter of Credit); (ii) within three (3) Business Days of the issuance of Investor Capital Calls to Investors (delivered to the Administrative Agent along with a summary of such Investor Capital Calls and calculated after giving effect to the related Investor Capital Contributions Loan requested by such Investor Capital Calls); (iii) promptly following a transfer of any Included Investor’s, Investor Capital Commitment (other than hereby set forth in the case of a transfer from one existing PWM Investor to another existing PWM Investor or from an existing PWM Investor to a new PWM Investor, unless such transfer will result in a Borrowing Base deficiency or cause all transfers for such month to equal 1% or more of the aggregate Investor Capital Commitments, in which case such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made, have been satisfied or waived in each case, prior to the effectiveness thereof); and (iv) no later than five (5) Business Days following the occurrence of (a) any Exclusion Event and a Responsible Officer of a Credit Party obtaining actual knowledge thereof so long as such Exclusion Event will result in a Borrowing Base deficiency or cause all Exclusion Events for such month to equal 1% or more of aggregate Investor Capital Commitments (in which case, such updated Borrowing Base Certificate shall be delivered and any mandatory prepayment required by this Credit Agreement shall be made) and otherwise, Exclusion Events may be reported (and a updated Borrowing Base Certificate provided) within ten (10) days of the end of each calendar month or (b) the reduction of any Investor’s Investor Capital Commitment in accordance with the terms of this Credit Agreement; provided, however, that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document, the Borrower is not required to monitor the Ratings of Included Investors, and the Administrative Agent will monitor such Ratings and may adjust the Borrowing Base if the Rating of any Rated Included Investor is downgraded by providing notice to the Borrowers at least one (1) Business Day in advance of the effective date of such adjustmentwriting. [6/7].
Appears in 1 contract
Samples: Senior Secured Credit Agreement (American Healthcare REIT, Inc.)
