Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders: (a) within ninety days after the close of each Fiscal Year of the Parent and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof; (b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments); (c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller; (d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent; (e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof; (f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith; (g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended: (1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion; (ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date; (iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion; (iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and (v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement; (h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable; (i) promptly upon the Agent’s request (in its Permitted Discretion): (i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto; (ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and (iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties; (j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service; (k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan; (l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination; (m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan; (n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period; (o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party; (p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11); (q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished; (r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and (s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Star Gas Partners Lp)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) as soon as available, and in any event within ninety one hundred twenty (120) days after the close of each Fiscal Year of the Parent Holdings and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof, unless (i) obtaining such a certificate is not reasonably economically feasible in the good faith judgment of the Borrower and (ii) Agent has consented in its sole discretion to the Loan Parties not delivering such certificate;
(b) as soon as available, and in any event within forty-five thirty (30) days after the close of the first three quarterly periods of each Fiscal Year Month of the Parent Holdings and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(dc) as soon as available, but in any event not more than sixty (60) days prior to the end of each Fiscal Year of the Borrower, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) Budget in form reasonably satisfactory to the Agent;
(ed) together with each of the financial statements required under Sections 6.1(a), ) and (b) (solely for the third, sixth, ninth and (ctwelfth Fiscal Months of each Fiscal Year), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - officer or controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(e) as soon as available:
(i) a report on the Net Orderly Liquidation Value (the “Appraised Value Report”) of the Borrower’s Compression Units prepared by the Approved Appraiser, which report shall update the prior Appraised Value Report (or desk review delivered pursuant to clause (ii) below) with data collected and verified no more than 30 days prior to September 30 of such year and having an effective date of September 30 of such year; and
(ii) a desk review of the most recently prepared Appraised Value Report (the “Appraised Value Report Desk Review”) prepared by the Approved Appraiser with adjustments for the unit value of any additions and/or deletions since the date of the most recent Appraised Value Report with data collected and verified no more than 30 days prior to March 31 of such year and having an effective date of March 31 of such year, based on average dollar value per unit of horsepower of such additions or deletions as set forth or implied in such Appraised Value Report.
(f) as soon as available but in any event within 20 (i) twenty (20) days of the end of each Fiscal Month calendar month if Availability for each day is equal to or greater than $20,000,000 or (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 ii) three (3) days of the end of each week)calendar week if Availability for any day is less than $20,000,000, and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewith;
(g) as soon as available but in any event within 20 twenty (20) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary detailed aging of the Borrower’s Accounts of the Borrower and PHI and each of their respective Subsidiaries, (1) including an all invoices aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, invoice date and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as a summary specifying the Agent requestsname, in its Permitted Discretionaddress, and balance due for each Account Debtor;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 thirty (30) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 thirty (30) days of filing thereof, copies of all tax returns filed by any Loan Party or the Managing General Partner with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Borrower, a statement of the Unfunded Liabilities of each Single Employer PlanPlan that is sponsored or maintained by Borrower or a Subsidiary, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA, if applicable;
(l) as soon as possible and in any event within 10 ten days after the Borrower (i) knows that any Reportable Event has occurred with respect to any PlanPlan that is sponsored or maintained by Borrower or a Subsidiary, a statement, signed by the chief financial officer an Authorized Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 thirty (30) days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer PlanPlan that is sponsored or maintained by Borrower or a Subsidiary;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(po) concurrently with the delivery within thirty (30) days of annual audited financial statements pursuant to Section 6.1(a)each March 31 and September 30, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower Borrower;
(it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)p) Reserved;
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements (other than registration statements on Form S-8 or any registration statement filed in connection with a DRIP) and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(r) on the first Business Day of the month of March and September, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization and upon Agent’s request, a certificate of authority to do business from the appropriate governmental officer in each foreign jurisdiction where the Borrower is qualified to do business; and
(s) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. Notwithstanding the foregoing, so long as Holdings is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended and in effect from time to time, the obligations in paragraphs (a), (b) and (q) of this Section 6.1 shall be deemed satisfied upon the filing (within the applicable time period set forth above) by Holdings’ of any report (including, without limitation on Form 10-K or 10-Q) with the Securities and Exchange Commission.
Appears in 2 contracts
Samples: Credit Agreement (USA Compression Partners, LP), Credit Agreement
Financial and Collateral Reporting. Each Loan Party The Domestic Borrower will maintain, for itself and each Subsidiaryof its Subsidiaries, a system of accounting established and administered in accordance to produce financial statements that conform with GAAP, and will will, through the Agent, furnish to the Lenders:
(a) within ninety 120 days after the close of each Fiscal Year of the Parent Domestic Borrower and its Subsidiaries, an unqualified (as to scope and without a going concern or similar qualifier) audit report certified by independent certified public accountants reasonably acceptable to the Required LendersAgent, prepared in all material respects in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be (1) prepared in accordance with GAAP or (2) certified by such accountants), including balance sheets as of the end of such Fiscal Year, related Year and a statement of profit and loss and reconciliations of statements of retained earningsfor the period then ended, and a consolidated statement of changes in shareholders’ equity and a consolidated statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five 50 days after the close of the first three quarterly periods of each Fiscal Year of the Parent Domestic Borrower and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating (which consolidating statements need not be prepared in accordance with GAAP) statements of profit and loss and reconciliations of statements of retained earnings for the period then ended, and a consolidated statement of changes in shareholders’ equity and a consolidated statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in all material respects in accordance with GAAP (except for consolidating statements need not be prepared in accordance with GAAP and except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty 30 days after the close of each Fiscal MonthMonth of the Domestic Borrower and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating (which consolidating statements may not be prepared in accordance with GAAP) statements of profit and loss and reconciliations of statements of retained earnings for the period then ended, and a consolidated statement of changes in shareholders’ equity and a consolidated statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in all material respects in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by (1) its chief financial officer or vice president - controller(2) its controller and an executive officer;
(d) as soon as available, but in any event not less more than 10 30 days prior to the end of each Fiscal Year, but prior to the end of such Fiscal Year, a draft copy on a business unit basis of the plan and forecast of the Domestic Borrower and its Subsidiaries of the next Fiscal Year on an annual basis and, not more than 90 days after the end of the Fiscal Year, a final copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Domestic Borrower and its Subsidiaries for each month Fiscal Quarter of such the next Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the (1) chief financial officer, vice president - officer or (2) controller or treasurer and executive officer of the Domestic Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) including, without limitation, compliance with the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then Ratio, if applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) At the Domestic Borrower’s option, as soon as available but available, and in any event within 20 days of no later than 3 Business Days after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each calendar week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to Report showing the computation of the Aggregate Borrowing Base in reasonable detail as calculated of the close of business on the last day of the immediately preceding week, together with such other information as is therein required, in each case prepared by the Domestic Borrower and defined in certified to by the 2010 Parent Indenture and supporting information in connection therewithDomestic Borrower’s chief financial officer or controller;
(g) as soon as available but in any event within 20 days Business Days of the end of each Fiscal Month (orMonth, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent Agent, as of the period then ended, an Aggregate Borrowing Base Certificate and supporting information, including, without limitation, a Borrowing Base Certificate from each Loan Party, in connection therewith;
(h) as soon as available but in its Permitted Discretion)any event within 20 days (30 days with respect to subpart (iv) below) of the end of each Fiscal Month and at such other times as may be requested by the Agent, as of the period then ended:
(i) a detailed accounts receivable aging for each Loan Party (1) a summary aging of specifying the Accounts of the Borrower name and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2) reconciled to the Aggregate Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Loan Party’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, including any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower such Loan Party are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower such Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries such Loan Party and complaints and claims made against themsuch Loan Party), and (3) reconciled to the such Loan Party’s Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Domestic Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;; and
(iv) a reconciliation of the applicable Loan Parties’ Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers such Loan Parties’ books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(hi) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging or listing of the Borrower’s and PHI’s Loan Parties’ accounts payable;
(ij) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Loan Parties in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;; and
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;.
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Domestic Borrower, a statement of the Unfunded Liabilities of each Single Employer Plan, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA;
(l) as soon as possible and in any event within 10 days after the Borrower (i) any Loan Party knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrowersuch Loan Party, describing said Reportable Event and the action which the Borrower such Loan Party proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(pn) concurrently with within 30 days after the delivery of annual audited financial statements pursuant to Section 6.1(a)first date on which the Availability is less than $25,000,000 and, as the Agent may request, no more than once during any twelve-month period thereafter, so long as the Availability remains less than $25,000,000, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)each Loan Party;
(qo) concurrently with the furnishing thereof to the unitholders shareholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(rp) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(sq) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. In addition, not later than 20 days after the end of each Fiscal Month, the Domestic Borrower shall cause each Loan Party to submit a Borrowing Base Certificate to the Domestic Borrower with respect to its borrowing base for the immediately preceding month, and the Domestic Borrower shall retain such Borrowing Base Certificate and deliver same to the Agent upon the Agent’s request therefor.
Appears in 2 contracts
Samples: Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio Holdings Corp)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) as soon as available, and in any event within ninety one hundred twenty (120) days after the close of each Fiscal Year of the Parent Holdings and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof, unless (i) obtaining such a certificate is not reasonably economically feasible in the good faith judgment of the Borrower and (ii) Agent has consented in its sole discretion to the Loan Parties not delivering such certificate;
(b) as soon as available, and in any event within forty-five (45) days after the close of the first three quarterly periods (3) Fiscal Quarters of each Fiscal Year of the Parent Holdings and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(dc) as soon as available, but in any event not more than sixty (60) days prior to the end of each Fiscal Year of the Borrower, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) Budget in form reasonably satisfactory to the Agent;
(ed) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - officer or controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(e) as soon as available, an Appraised Value Report, which report shall update the prior Appraised Value Report with data collected and verified no more than thirty (30) days prior to September 30 of such year and having an effective date of September 30 of such year.
(f) as soon as available but in any event within 20 (i) twenty (20) days of the end of each Fiscal Month calendar month if Availability for each day is equal to or greater than $20,000,000 or (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 ii) three (3) days of the end of each week)calendar week if Availability for any day is less than $20,000,000, and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewith;
(g) as soon as available but in any event within 20 twenty (20) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and detailed aging of the Borrower’s and PHI’s accounts payable;
Accounts (iA) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of including all invoices in connection with the invoices issued aged by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accountsinvoice date, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);; 80
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, 81 additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a schedule prepared by the Borrower to determine Eligible Commodity Hedging Agreements, detailing the Eligible Hedging Counterparty, the trade date, fixed price, floating price, start date, end date, quantity and settlement amount for each Eligible Commodity Hedging Agreement, accompanied by the calculation for the amount of the Eligible Hedging Receivables and the statements from each Eligible Hedging Counterparty with respect to its respective Eligible Commodity Hedging Agreement;
(v) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(vvi) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief 82 financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) promptly following any request thereof, (x) such other information (including, without limitation, non-financial non‑financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably requestrequest and (y) information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation.
Appears in 1 contract
Samples: Credit Agreement (Star Group, L.P.)
Financial and Collateral Reporting. Each Loan Party The Borrower will maintain, for itself and each Subsidiaryof its Subsidiaries, a system of accounting established and administered in accordance to produce financial statements that conform with GAAP, and will will, through the Borrower, furnish to the Lenders:
(a) within ninety 120 days after the close of each Fiscal Year of the Parent Borrower and its Subsidiaries, an unqualified (as to scope and without a going concern or similar qualifier) audit report certified by independent certified public accountants reasonably acceptable to the Required LendersAgent, prepared in all material respects in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be (1) prepared in accordance with GAAP or (2) certified by such accountants), including balance sheets as of the end of such Fiscal Year, related Year and a statement of profit and loss and reconciliations of statements of retained earningsfor the period then ended, and a consolidated statement of changes in shareholders' equity and a consolidated statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five 50 days after the close of the first three quarterly periods of each Fiscal Year of the Parent Borrower and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating (which consolidating statements need not be prepared in accordance with GAAP) statements of profit and loss and reconciliations of statements of retained earnings for the period then ended, and a consolidated statement of changes in shareholders' equity and a consolidated statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in all material respects in accordance with GAAP (except for consolidating statements need not be prepared in accordance with GAAP and except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty 30 days after the close of each Fiscal MonthMonth of the Borrower and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating (which consolidating statements may not be prepared in accordance with GAAP) statements of profit and loss and reconciliations of statements of retained earnings for the period then ended, and a consolidated statement of changes in shareholders' equity and a consolidated statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in all material respects in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by (1) its chief financial officer or vice president - controller(2) its controller and an executive officer;
(d) as soon as available, but in any event not less more than 10 30 days prior to the end of each Fiscal Year, but prior to the end of such Fiscal Year, a draft copy on a business unit basis of the plan and forecast of the Borrower and its Subsidiaries of the next Fiscal Year on an annual basis and, not more than 90 days after the end of the Fiscal Year, a final copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Borrower and its Subsidiaries for each month of such the next Fiscal Year (the “Projections”"PROJECTIONS") in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit EXHIBIT E (a “Compliance Certificate”"COMPLIANCE CERTIFICATE") signed by the (1) chief financial officer, vice president - officer or (2) controller or treasurer and executive officer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) including, without limitation, compliance with the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then Ratio, if applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) At the Borrower's option, as soon as available but available, and in any event within 20 days of no later than 3 Business Days after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each calendar week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to Report showing the computation of the Aggregate Borrowing Base in reasonable detail as calculated of the close of business on the last day of the immediately preceding week, together with such other information as is therein required, in each case prepared by the Borrower and defined in certified to by the 2010 Parent Indenture and supporting information in connection therewithBorrower's chief financial officer or controller;
(g) as soon as available but in any event within 20 days Business Days of the end of each Fiscal Month (orMonth, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent Agent, as of the period then ended, an Aggregate Borrowing Base Certificate and supporting information in connection therewith;
(h) as soon as available but in its Permitted Discretion)any event within 20 days (30 days with respect to subpart (iv) below) of the end of each Fiscal Month and at such other times as may be requested by the Agent, as of the period then ended:
(i) a detailed accounts receivable aging for each Loan Party (1) a summary aging of specifying the Accounts of the Borrower name and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2) reconciled to the Aggregate Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Loan Party's Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, including any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower such Loan Party are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower such Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries such Loan Party and complaints and claims made against themsuch Loan Party), and (3) reconciled to the such Loan Party's Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;; and
(iv) a reconciliation of the applicable Loan Parties' Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers such Loan Parties' books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(hi) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging or listing of the Borrower’s and PHI’s Loan Parties' accounts payable;
(ij) promptly upon the Agent’s request (in its Permitted Discretion):'s request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Loan Parties in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;; and
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;.
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Borrower, a statement of the Unfunded Liabilities of each Single Employer Plan, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA;
(l) as soon as possible and in any event within 10 days after the Borrower (i) any Loan Party knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrowersuch Loan Party, describing said Reportable Event and the action which the Borrower such Loan Party proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(pn) concurrently with within 30 days after the delivery of annual audited financial statements pursuant to Section 6.1(a)first date on which the Availability is less than $25,000,000 and, as the Agent may request, no more than once during any twelve-month period thereafter, so long as the Availability remains less than $25,000,000, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)each Loan Party;
(qo) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrower, copies of all financial statements, reports and proxy statements so furnished;
(rp) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(sq) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. In addition, not later than 20 days after the end of each Fiscal Month, the Borrower shall cause each Loan Party to submit a Borrowing Base Certificate to the Borrower with respect to its Borrowing Base for the immediately preceding month, and the Borrower shall retain such Borrowing Base Certificate and deliver same to the Agent upon the Agent's request therefor.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party The Borrower will maintain, for itself and each SubsidiarySubsidiary (other than Excluded Subsidiaries), a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent Borrower and its Subsidiaries (other than Excluded Subsidiaries), an unqualified (other than with respect to the Case or a going concern qualification) audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured DefaultDefault with respect to the covenant set forth in Section 6.29, or if, in the opinion of such accountants, any such a Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent Borrower and its Subsidiaries (other than Excluded Subsidiaries), consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer Chief Financial Officer or Chief Accountant and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty twenty days after the close of each Fiscal MonthMonth of the Borrower and its Subsidiaries (other than Excluded Subsidiaries), consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer Chief Financial Officer or vice president - controllerChief Accountant;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent[intentionally omitted];
(e) together with each of the financial statements required under Sections 6.1(aclauses (a), (b) and (c)) of this Section 6.1, a compliance certificate in substantially the form of Exhibit E D (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller Chief Financial Officer or treasurer Chief Accountant of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) (i) until such time as soon as available but in any event within 20 days of the initial Credit Extension shall have occurred, not later than the seventh Business Day after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion)calendar month, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewiththerewith and (ii) at all times after the initial Credit Extension shall have occurred, as soon as available but in any event within three Business Days of the end of each calendar week, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith (provided that the weekly Borrowing Base Certificate required by this clause (ii) shall be updated weekly with respect to invoicing and collection of cash, and monthly with respect to ineligible Accounts and Borrowing Base Inventory);
(g) as soon as available but in any event within 20 days seven Business Days after the end of each calendar month, as of the period then ended, a detailed aged trial balance of the Borrower’s Accounts (reported separately by billed and unbilled Account category type) reconciled to the most recently delivered Borrowing Base Certificate and the weekly “rollforwards” for the previous month delivered pursuant to clause (h) below, prepared in a manner reasonably acceptable to the Agent;
(h) as soon as available but in any event within three Business Days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each calendar week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1i) a summary aging “rollforward” of the Borrower’s Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging previously delivered month-end aged trial balance delivered pursuant to clause (g) above, such “rollforward” to consist of a sales journal, a collection journal and a credit journal reflecting activity for each branch, the most recent calendar week (reported separately by billed and (2unbilled Account category type) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a worksheet of calculations prepared by the Borrower to determine Eligible Billed Accounts, Eligible Unbilled Accounts, Eligible Stored Gas Inventory, Eligible Working Gas and Fuel Inventory, Eligible Materials and Supplies Inventory and Eligible Turbine Collateral, such worksheet detailing the Accounts (reported separately by billed and unbilled Account category type), Borrowing Base Inventory and Turbine Collateral excluded from Eligible Billed Accounts, Eligible Unbilled Accounts, Eligible Stored Gas Inventory, Eligible Working Gas and Fuel Inventory, Eligible Materials and Supplies Inventory and Eligible Turbine Collateral, respectively, and the reason for such exclusion; provided that until the first Credit Extension shall have occurred the Borrower shall only be required to deliver the information required by this clause (ii) on or before the seventh Business Day after the end of each calendar month; and
(iii) a reconciliation of the Borrower’s Accounts, Borrowing Base Inventory and Turbine Collateral between the amounts shown in the Borrower’s and its Subsidiaries’ books and financial statements and the reports delivered pursuant to clause (i) above;
(i) as soon as available but in any event within seven Business Days after the end of each calendar month, a schedule detailing the Stored Gas Inventory, Working Gas and Fuel Inventory of and Materials and Supplies Inventory (collectively, the Borrower and PHI and their respective Subsidiaries, “Borrowing Base Inventory”) in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transitlocation, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Borrowing Base Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Borrowing Base Inventory counts measurements performed by the Borrower Loan Parties since the last Borrowing Base Inventory schedule (including information regarding sales or other reductions, additions, returnsdepletions, credits issued by the Borrower or PHI or any of their respective Subsidiaries Loan Party and complaints and claims made against them), any Loan Party) and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(hj) as soon as available but in any event within 20 days of not later than the seventh Business Day after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)calendar month, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s its Subsidiaries (other than Excluded Subsidiaries) accounts payable;
(ik) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of access to invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Borrowing Base Inventory, Machinery Equipment or Equipment other assets purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan PartiesBorrower and its Subsidiaries;
(jl) on the first Business Day of the month of January and June, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(m) as soon as possible and in any event within 20 days five Business Days of filing thereof, copies of all tax returns filed by the Borrower or any Loan Party Subsidiary (other than Excluded Subsidiaries) with the U.S. Internal Revenue Service;
(kn) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Borrower, a statement of the Unfunded Liabilities of each Single Employer Plan, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA;
(lo) as soon as possible and in any event within 10 ten days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer Chief Financial Officer or Chief Accountant of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(mp) as soon as possible and in any event within 10 days (i) five Business Days of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(oq) as soon as possible and in any event within 10 days five Business Days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, environment and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qr) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrower, copies of all financial statements, reports and proxy statements so furnished;
(rs) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which the Borrower or any Loan Party Subsidiary (other than Excluded Subsidiaries) files with the Securities and Exchange Commission;
(t) not later than 5:00 p.m. Chicago time on each Wednesday, the unaudited weekly cash flow reports of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) on a consolidated basis and as of the end of such week, and on a cumulative basis from September 15, 2003 (the “Projections”);
(u) not later than 5:00 p.m. Chicago time on each Wednesday, the Borrower’s forecast of cash receipts and disbursements for the Borrower and its Subsidiaries (other than Excluded Subsidiaries) for the ensuing 13-week period; and
(sv) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)including nonfinancial information) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party Customer will maintain, for itself and each Subsidiary, maintain a system of accounting established and administered in accordance with GAAP, and will furnish to the LendersMetal Lender:
(a) within ninety (90) days after the close of each Fiscal Year of the Parent BEM and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required LendersMetal Lender, prepared in accordance with GAAP on a consolidated Consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earningsstatements, and a statement of cash flows, accompanied by (i) any a management letter prepared by said accountants accountants, if any, and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five (45) days after the close of the first three quarterly periods (3) Fiscal Quarters of each Fiscal Year of the Parent BEM and its Subsidiaries, consolidated Consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer in a manner consistent with certifications filed by BEM with the Securities and Exchange Commission with respect to such statements and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty twenty (20) days after the close of each Fiscal MonthMonth of BEM and its Subsidiaries, consolidated Consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller);
(d) as soon as available, but in any event not more than sixty (60) days prior to the end of each Fiscal Year of BEM, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent BEM for each month Fiscal Quarter of such the following Fiscal Year (the “Projections”) in form reasonably satisfactory to the AgentMetal Lender;
(e) together with each of the financial statements required under Sections 6.1(a), (bSection 9.01(a) and (c), 9.01(b) a compliance certificate in substantially the form of (i) the compliance certificate delivered by BEM to the agent under the Senior Credit Agreement, but addressed to Metal Lender, or (ii) Exhibit E G (in the case of (i) or (ii), a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative BEM showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 twenty (20) days of after the end close of each Fiscal Month (orMonth, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), a certificate as of the period then endedlast day of such Fiscal Month (each a “Collateral Compliance Certificate”) detailing on a consolidating basis, a Borrowing Base Certificate, which will include information relating in form reasonably acceptable to the Borrowing Base Metal Lender, the quantity and location of all Precious Metal owned or otherwise held by the Customers (including all Precious Metal outstanding under Permitted Precious Metals Agreements and all Client Metal subject to any Client-Customer Arrangement) as calculated well as Collateral supporting the Refining Reserves and defined in Forward Contract Exposure, each of which Collateral Compliance Certificates shall serve as the 2010 Parent Indenture basis for determining the Customers’ eligibility for additional Consignments and supporting information in connection therewithForward Contracts until such time as the Metal Lender receives an updated Collateral Compliance Certificate;
(g) as soon as available but in any event within 20 days of contemporaneously with the end of each Fiscal Month (or, during the Seasonal Availability Period or Customers’ delivery thereof to the extent Availability is less than 15.0% of Agent or Lenders under the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Senior Credit Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect Borrowing Base Certificate (as defined in the Senior Credit Agreement) required to any Single Employer Planbe delivered by the Customers pursuant thereto;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(oh) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan PartyCustomer, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any material violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by any Loan PartyCustomer;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qi) concurrently with the furnishing thereof to the unitholders shareholders of the ParentCustomers, copies of all financial statements, reports and proxy statements so furnished;
(rj) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party Customer files with the Securities and Exchange Commission; and
(sk) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Metal Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Precious Metals Agreement (Brush Engineered Materials Inc)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Borrower will furnish to the Agent (for further distribution by the Agent to the Lenders:):
7.1.1 Within ninety (a90) within ninety days after the close of each Fiscal Year of the Parent and its Subsidiariesfiscal years, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, financial statements prepared in accordance with GAAP on a consolidated basis for itself and consolidating basis (consolidating statements need not be certified by such accountants)its Subsidiaries, including a balance sheets sheet as of the end of such Fiscal Yearperiod, related profit and loss and reconciliations a statement of statements of retained earnings, income and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable periodprevious year, all certified accompanied by its chief an audit report, without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, of a nationally recognized firm of independent public accountants with respect to such consolidated financial officer statements.
7.1.2 On the date that is the earlier of (i) the date on which Borrower’s financial statements shall have been filed with the Security Exchange Commission and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal yearii) the day which is fifty-end audit adjustments);
five (c55) within thirty days after the close of the first three (3) quarterly periods of each Fiscal Monthof its fiscal years, for itself and its Subsidiaries, a consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries sheet as at the close of each such Fiscal Month period and a consolidated statement of income and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows flows, in each case, for the period from the beginning of the applicable Fiscal Year such fiscal year to the end of such Fiscal Month, quarter and setting forth in each case in comparative form the figures for the prior 12-month periodprevious year, all prepared in accordance with GAAP (except for exclusion and certified by an Authorized Financial Officer that, to the best of footnotes his or her knowledge, such financial statements are prepared in accordance with Agreement Accounting Principles and are fairly stated in all material respects, subject to the absence of footnote disclosure and normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;.
(d) 7.1.3 If outstanding Loans exceed 25% of the Aggregate Commitment for a period of 30 consecutive days, as soon as available, but in any event not less later than 10 thirty (30) days prior to after the end of such Fiscal Yearfiscal month period during which such period of 30 consecutive days concluded, a copy of the plan monthly management reports detailing period and forecast (including a projected consolidated year to date Income from Continuing Operations, Consolidated Indebtedness and consolidating balance sheetConsolidated EBITDAR, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory certified by an Authorized Financial Officer that, to the Agent;best of his or her knowledge, such financial data are prepared in accordance with past business practice.
(e) together 7.1.4 Together with each of the financial statements required under Sections 6.1(a), (b) 7.1.1 and (c)7.1.2, a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) B signed by the chief an Authorized Financial Officer (i) showing financial officer, vice president - controller or treasurer of the Borrower Representative showing the data and calculations necessary in reasonable detail (including itemized Pro Forma Adjustments) to determine compliance with Sections 7.23 and 7.24 of this Agreement (including calculation and the baskets set forth in Sections 7.11, 7.17 and 7.18 of (i) Availability for purposes of Sections 6.16 this Agreement and 6.25 stating that such data and computations are complete and correct in all material respects, (ii) solely in the Fixed Charge Coverage Ratio case of a compliance certificate delivered in connection with the financial statements required under Section 7.1.1, identifying all then existing Material Subsidiaries, and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable(iii) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
thereof (f) as soon as available but in any event within 20 days of it being understood and agreed that the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;such compliance certificate, other than any pro forma adjustments, shall be prepared in accordance with Agreement Accounting Principles).
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as 7.1.5 As soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
thirty (k30) as soon as possible and in any event within 300 days after the close an Authorized Officer of the Fiscal Year Borrower or any of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows its Subsidiaries obtains knowledge that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer an Authorized Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;.
(m) as 7.1.6 As soon as possible and in any event within 10 days ten (i10) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to an Authorized Officer of the extent pertaining to a matter that could have a material impact on any Loan PartyBorrower, a copy of (ia) any notice or claim to the effect that any Loan Party Group Member is or may be liable to any Person as a result of the release by any Loan PartyGroup Member, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (iib) any notice alleging any violation of any Environmental Laws or any federal, state or local health or safety law or regulation by any Loan Party;
Group Member, which in the case of either clause (pa) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(aor (b), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject could reasonably be expected to Section 9.11);have a Material Adverse Effect.
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon 7.1.7 Promptly after the filing thereof, copies of all any registration statements and statement or annual, quarterly, monthly or other regular reports report or any special report on Form 8-K which any Loan Party Group Member files with the Securities and Exchange Commission; and
(s) such other information (, including, without limitation, nonany certification or other filing required by Sections 302 and 906 of the Xxxxxxxx-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably requestXxxxx Act of 2002 and all rules and regulations related thereto, notice that such filings have been made.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Agent on behalf of the Lenders:
(a) within ninety 90 days after the close of each Fiscal Year of the Parent Company and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earningsstatements, and a statement of cash flows, accompanied by (i) any a management letter prepared by said accountants accountants, if any, and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five 45 days after the close of the first three quarterly periods Fiscal Quarters of each Fiscal Year of the Parent Company and its SubsidiariesSubsidiaries (commencing with the first Fiscal Quarter of 2004), consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer in a manner consistent with certifications filed with the Securities and Exchange Commission with respect to such statements and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty 20 days after the close of each Fiscal MonthMonth of the Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller);
(d) as soon as available, but in any event not more than 60 days prior to the end of each Fiscal Year of the Company, but not less than 10 30 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Company for each month Fiscal Quarter of such the following Fiscal Year (the “"Projections”") in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E (a “"Compliance Certificate”") signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative Company showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end by Wednesday of each week), and at such other times as may be requested by the Agent (an Aggregate Borrowing Base Certificate in its Permitted Discretion), as connection therewith for Sunday through Saturday of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewithprevious week;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary aging detailed aged trial balance of each Borrower's Accounts (A) specifying the Accounts of the Borrower name, address, and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2B) reconciled to the its Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Borrower's Inventory, in form reasonably satisfactory to the Agent, (1A) by location (showing Inventory in transit, including any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower Borrowers are deemed by the Agent to be appropriate, (2B) including a report of any variances or other results of Inventory counts performed by the Borrower Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers and complaints and claims made against themthe Borrowers), and (3C) reconciled to the Aggregate Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower Borrowers to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers' Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers the Borrowers' books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) an Aggregate Borrowing Base Certificate relating to such Fiscal Month along with all supporting information, including, without limitation, a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this AgreementBorrowing Base Certificate from each Loan Party;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month Fiscal Month then ended, a schedule and aging of the Borrower’s and PHI’s Borrowers' accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):'s request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 270 days after the close of filing thereofthe plan year of each Single Employer Plan, copies a statement of all tax returns filed the Unfunded Liabilities of each Single Employer Plan, certified as correct by any Loan Party with the U.S. Internal Revenue Servicean actuary enrolled under ERISA;
(k) as soon as possible and in any event within 300 15 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the such Borrower, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(ol) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qm) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrowers, copies of all financial statements, reports and proxy statements so furnished;
(rn) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(o) as soon as possible and in any event within 20 days after the end of each Fiscal Month, a detailed listing of all intercompany loans made by the Borrowers during such month; and
(sp) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. In addition, not later than 20 days after the end of each Fiscal Month, each Borrower shall submit a Borrowing Base Certificate to the Company with respect to its Borrowing Base for the previous Fiscal Month, and the Company shall retain such Borrowing Base Certificates and deliver same to the Agent upon the Agent's request therefor.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety five days after the close of each Fiscal Year of the Parent Company and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants)basis, including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and accountants, (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof, and (iii) a letter from said accountants addressed to the Lenders acknowledging that the Lenders are extending credit in primary reliance on such financial statements and authorizing such reliance;
(b) within forty-five fifty days after the close of the first three quarterly periods Fiscal Quarters of each Fiscal Year of the Parent Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Company and its Subsidiaries and of its Unrestricted Subsidiaries as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows of the Company and its Subsidiaries and of its Unrestricted Subsidiaries for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty twenty-five days after the close of each Fiscal Month, other than any Fiscal Month which is also the end of one of the first three Fiscal Quarters, of the Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controllerofficer;
(d) as soon as availablePrior to the beginning of each Fiscal Year of the Company, but not less more than 10 ninety days prior to the end of such Fiscal Yearthereto, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) and budget of the Parent Company for each month of such Fiscal Year (the “"Projections”") in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E (a “"Compliance Certificate”") signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative Company showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 twenty five days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week)calendar month, and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewith;
(g) as soon as available but in any event within 20 25 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(i) a detailed aged trial balance of the Company's Accounts (1) a summary aging of specifying the Accounts of the Borrower name, address (if requested), and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower Company to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other InventoryUnbilled Accounts, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory Unbilled Accounts and the reason for such exclusion;
(iviii) a reconciliation of the Company's Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers the Company's books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(viv) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s Company's accounts payable;
(ih) promptly upon the Agent’s request (in its Permitted Discretion):'s request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Company in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iiiii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ji) as soon as possible and available but in any event within 20 days on the third Business Day after the end of filing thereofeach week for the most recently ended week, copies a summary report indicating collections for such week in a form provided by the Agent at least one week prior to the date such report is required;
(j) after a Borrowing Base Availability Deficiency Event, as soon as available but in any event on the third Business Day after the end of each week for the most recently ended week, an update on the amount of all tax returns filed Eligible Accounts and Eligible Unbilled Accounts and such other information with respect thereto as required by any Loan Party with the U.S. Internal Revenue ServiceAgent;
(k) as soon as possible and in any event within 300 days after on the close first Business Day of the Fiscal Year month of each Single Employer PlanMarch, a certified financial statement certificate of such Single Employer Plangood standing for the Company and each Domestic Subsidiary from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(l) as soon as possible and in any event within 10 five days after the Borrower (i) Company knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the BorrowerCompany, describing said Reportable Event and the action which the Borrower Company proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan PartyParty which could have a Material Adverse Effect;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qn) concurrently with the furnishing thereof to the unitholders shareholders of the ParentCompany, copies of all financial statements, reports and proxy statements so furnished;
(ro) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(p) within ninety five days after the close of each Fiscal Year of the Company and its Subsidiaries and within fifty days after the close of the first three Fiscal Quarters of each Fiscal Year of the Company and its Subsidiaries, consolidating financial statements of the Company and its Subsidiaries and of its Unrestricted Subsidiaries consistent with the consolidating financial statements that have been included in the Company's 10-Q and 10-K reports filed with the Securities and Exchange Commission together with such additional detail in connection therewith requested by the Agent, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustment in the case of such quarterly reports);
(q) simultaneously with their delivery under the Second Secured Debt Documents, the Third Secured Term Loan Debt Documents or the Fourth Secured Term Loan Debt Documents, any notice or other documentation delivered to the holders of the debt under those agreements pursuant to the Second Secured Debt Documents, the Third Secured Term Loan Debt Documents or the Fourth Secured Term Loan Debt Documents; and
(sr) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request, including without limitation any tax returns, any statements of the Unfunded Liabilities of each Single Employer Plan certified by an actuary enrolled under ERISA and any annual report or other filing with respect to any Plan filed with the PBGC, the U.S. Internal Revenue Service or any other governmental entity. Documents required to be delivered pursuant to Section 6.1(a), (b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, and provides a link thereto on the Company's website on the Internet address www.msxi.com or (ii) on which such documents are posted on the Compaxx'x xxxxxx on Intralinks/IntraAgency or another relevant website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that, (1) the Company shall deliver copies of such documents to the Agent or any Lender that reasonably requests that the Company deliver paper copies of such documents until a written request to cease delivering paper copies is given by the Agent or such Lender and (2) the Company shall notify (which may be by facsimile or electronic mail) the Agent and each Lender of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e. soft copies) of such documents. Notwithstanding the foregoing, in every instance, the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.1(e) to the Agent and each of the Lenders. Except for such Compliance Certificates, the Agent shall have no obligations to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party Customer will maintain, for itself and each Subsidiary, maintain a system of accounting established and administered in accordance with GAAP, and will furnish to the LendersMetal Supplier:
(a) within ninety (90) days after the close of each Fiscal Year of the Parent BEM and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required LendersMetal Supplier, prepared in accordance with GAAP on a consolidated Consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earningsstatements, and a statement of cash flows, accompanied by (i) any a management letter prepared by said accountants accountants, if any, and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five (45) days after the close of the first three quarterly periods (3) Fiscal Quarters of each Fiscal Year of the Parent BEM and its SubsidiariesSubsidiaries (commencing with the first Fiscal Quarter of 2005), consolidated Consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer in a manner consistent with certifications filed by BEM with the Securities and Exchange Commission with respect to such statements and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty twenty (20) days after the close of each Fiscal MonthMonth of BEM and its Subsidiaries, consolidated Consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller);
(d) as soon as available, but in any event not more than sixty (60) days prior to the end of each Fiscal Year of BEM, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent BEM for each month Fiscal Quarter of such the following Fiscal Year (the “Projections”) in form reasonably satisfactory to the AgentMetal Supplier;
(e) together with each of the financial statements required under Sections 6.1(a), (bSection 9.01(a) and (c), 9.01(b) a compliance certificate in substantially the form of (i) the compliance certificate delivered by BEM to the agent under the Senior Credit Agreement, but addressed to Metal Supplier, or (ii) Exhibit E G (in the case of (i) or (ii), a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative BEM showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 twenty (20) days of after the end close of each Fiscal Month (orMonth, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), a certificate as of the period then endedlast day of such Fiscal Month (each a “Collateral Compliance Certificate”) detailing on a consolidating basis, a Borrowing Base Certificate, which will include information relating in form reasonably acceptable to the Borrowing Base Metal Supplier, the quantity and location of all Precious Metal owned or otherwise held by the Customers (including all Precious Metal outstanding under Permitted Precious Metals Agreements and all Client Metal subject to any Client-Customer Arrangement) as calculated well as Collateral supporting the Refining Reserves and defined in Forward Contract Exposure, each of which Collateral Compliance Certificates shall serve as the 2010 Parent Indenture basis for determining the Customers’ eligibility for additional Consignments and supporting information in connection therewithForward Contracts until such time as the Metal Supplier receives an updated Collateral Compliance Certificate;
(g) as soon as available but in any event within 20 days of contemporaneously with the end Customers’ delivery thereof to the Agent or Lenders under the Senior Credit Agreement, a copy of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate (as defined in the Senior Credit Agreement) required to be delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered Customers pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreementthereto;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 15 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) Customer knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrowersuch Customer, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan PartyCustomer, a copy of (i) any notice or claim to the effect that any Loan Party Customer is or may be liable to any Person as a result of the release by any Loan PartyCustomer, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by any Loan PartyCustomer;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qj) concurrently with the furnishing thereof to the unitholders shareholders of the ParentCustomers, copies of all financial statements, reports and proxy statements so furnished;
(rk) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party Customer files with the Securities and Exchange Commission; and
(sl) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender Metal Supplier may from time to time reasonably request.
Appears in 1 contract
Samples: Precious Metals Agreement (Brush Engineered Materials Inc)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its SubsidiariesSubsidiaries (starting with the Fiscal Year ending September 30, 2013), an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - president—controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - president—controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable6.25) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI Petro and each of their respective its Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws or any federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective SubsidiariesBorrower, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its SubsidiariesSubsidiaries (starting with the Fiscal Year ending September 30, 2009), an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable6.25) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.020% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 New Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.020% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI Petro and each of their respective its Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.020% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws or any federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective SubsidiariesBorrower, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Star Group, L.P.)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within on the date of the filing of Form 10-K with the Securities and Exchange Commission, but in no event later than ninety days after the close of each Fiscal Year of the Parent Company and its Subsidiaries, an unqualified audit report certified without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit, by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within on the date of the filing of Form 10-Q with the Securities and Exchange Commission, but in no event later than forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal MonthMonth of the Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of statements of retained earnings surplus statements, and a statement of certain cash flows for the period flow items deemed necessary by Agent in its discretion, from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controllerofficer;
(d) as soon as available, but not less later than 10 thirty days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Company for each month Fiscal Quarter of such the following Fiscal Year (the “"Projections”") in form reasonably satisfactory to the Agent;; A&R CREDIT AGREEMENT
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “"Compliance Certificate”") signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(f) as soon as available but in any event within 20 three days of the end of each calendar week (or Fiscal Month (or, during if Borrowers' average Availability for the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each weekprior thirty-day period exceeds $20,000,000), and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a an Aggregate Borrowing Base Certificate, which will include information relating to the together with a duly executed Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate for each Borrower which calculates such Borrower's Borrowing Base, and supporting information in connection therewith;
(g) as soon as available but in any event within 20 fifteen days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(i) a detailed aging of each Borrower's Accounts (1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an all invoices aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, invoice date and (2) reconciled to the Aggregate Borrowing Base Certificate and such Borrower's Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as a summary specifying the Agent requestsname, in its Permitted Discretionaddress, and balance due for each Account Debtor;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Borrower's Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the such Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the such Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themsuch Borrower), and (3) reconciled to the such Borrower's Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the each Borrower to determine Eligible Accounts ReceivableAccounts, Eligible Heating Oil and Other Fuel Inventory Unbilled Accounts and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts ReceivableAccounts, Eligible Heating Oil and Other Fuel Inventory Unbilled Accounts and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the each Borrower's Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their such Borrower's general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the each Borrower’s 's general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;. A&R CREDIT AGREEMENT
(h) as soon as available but in any event within 20 fifteen days of the end of each Fiscal Month (orMonth, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s Borrowers' accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):'s request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as available but in any event within three days of the end of each calendar week and at such other times as may be requested by the Agent, as of the period then ended, the Borrower's sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal;
(k) as soon as possible and in any event within 20 thirty days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 two-hundred and seventy days after the close of the Fiscal Year of the Company, a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA;
(m) as soon as possible and in any event within ten days after any Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the such Borrower, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(mn) as soon as possible and in any event within 10 thirty days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any material notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any material notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery within ten days of annual audited financial statements pursuant to Section 6.1(aeach March 31 and September 30 (commencing September 30, 2004), an updated Customer List for the Borrower and PHI and their respective Subsidiarieseach Borrower, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat each such Customer Lists as confidential information subject to Section 9.11);Borrower; A&R CREDIT AGREEMENT 60
(q) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrowers, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(s) as soon as possible and in any event within ten days after the end of each Fiscal Quarter (or more frequently as requested by Agent in its discretion), a detailed listing of all advances of proceeds of Loans made by the Borrower Representative to each Borrower during the immediately preceding Fiscal Month and a detailed listing of all intercompany loans made by the Borrowers during such Fiscal Month;
(t) on the first Business Day of the month of each March and September (commencing September 2004), a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization; and
(su) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Agent on behalf of the Lenders:
(a) within ninety 90 days after the close of each Fiscal Year of the Parent Company and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earningsstatements, and a statement of cash flows, accompanied by (i) any a management letter prepared by said accountants accountants, if any, and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five 45 days after the close of the first three quarterly periods Fiscal Quarters of each Fiscal Year of the Parent Company and its SubsidiariesSubsidiaries (commencing with the first Fiscal Quarter of 2004), consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer in a manner consistent with certifications filed with the Securities and Exchange Commission with respect to such statements and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty 20 days after the close of each Fiscal MonthMonth of the Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller);
(d) as soon as available, but in any event not more than 60 days prior to the end of each Fiscal Year of the Company, but not less than 10 30 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Company for each month Fiscal Quarter of such the following Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E D (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative Company showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available, but in any event by Wednesday of each week, an Aggregate Borrowing Base Certificate in connection therewith for Sunday through Saturday of the previous week; provided, however, that if, during the Fiscal Month, Availability is not less than $15,000,000 for 3 consecutive Business Days or any 5 Business Days, then the Loan Parties shall only be required to furnish a monthly Aggregate Borrowing Base Certificate with respect to the Fiscal Month immediately succeeding such Fiscal Month, which shall be delivered as soon as available after such Fiscal Month, but in any event within 20 days Business Days of the end of each such Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewithMonth;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary aging detailed aged trial balance of each Borrower’s Accounts (A) specifying the Accounts of the Borrower name, address, and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2B) reconciled to the its Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Borrower’s Inventory, in form reasonably satisfactory to the Agent, (1A) by location (showing Inventory in transit, including any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower Borrowers are deemed by the Agent to be appropriate, (2B) including a report of any variances or other results of Inventory counts performed by the Borrower Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers and complaints and claims made against themthe Borrowers), and (3C) reconciled to the Aggregate Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower Borrowers to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers’ Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers the Borrowers’ books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) an Aggregate Borrowing Base Certificate relating to such Fiscal Month along with all supporting information, including, without limitation, a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this AgreementBorrowing Base Certificate from each Loan Party;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month Fiscal Month then ended, a schedule and aging of the Borrower’s and PHI’s Borrowers’ accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 270 days after the close of filing thereofthe plan year of each Single Employer Plan, copies a statement of all tax returns filed the Unfunded Liabilities of each Single Employer Plan, certified as correct by any Loan Party with the U.S. Internal Revenue Servicean actuary enrolled under ERISA;
(k) as soon as possible and in any event within 300 15 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the such Borrower, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(ol) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qm) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrowers, copies of all financial statements, reports and proxy statements so furnished;
(rn) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(o) as soon as possible and in any event within 20 days after the end of each Fiscal Month, a detailed listing of all intercompany loans made by the Borrowers during such month; and
(sp) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. In addition, not later than 20 days after the end of each Fiscal Month, each Borrower shall submit a Borrowing Base Certificate to the Company with respect to its Borrowing Base for the previous Fiscal Month, and the Company shall retain such Borrowing Base Certificates and deliver same to the Agent upon the Agent’s request therefor.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself The Borrower and each Subsidiary, Restricted Subsidiary will maintain a system of accounting established and administered in accordance with GAAP, and the Borrower will furnish to the Lenders:
(a) within ninety one hundred twenty (120) days after the close of each Fiscal Year of the Parent Borrower and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required LendersAgent, prepared in accordance with GAAP (and without a “going concern”, or like qualification, commentary or exception other than solely with respect to an upcoming maturity date of Indebtedness or a potential liability to satisfy a financial covenant, and without any qualification or exception as to the scope of such audit) on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof, unless (i) obtaining such a certificate is not reasonably economically feasible in the good faith judgment of the Borrower and (ii) the Agent has consented in its sole discretion to the Loan Parties not delivering such certificate;
(b) within forty-five (45) days after the close of the first three quarterly periods (3) Fiscal Quarters of each Fiscal Year of the Parent Borrower and its Subsidiaries, consolidated consolidated, and consolidating to the extent there are any Unrestricted Subsidiaries at such time, consolidating, unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(dc) as soon as availablenot more than sixty (60) days prior to the end of each Fiscal Year of the Borrower, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) Budget in form reasonably satisfactory to the Agent;
(ed) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E D (a “Compliance Certificate”) signed by the chief financial officer, vice president - officer or controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereofthereof and including a listing of all Restricted Subsidiaries and Unrestricted Subsidiaries of the Borrower;
(e) an Appraised Value Report, which report shall update the prior Appraised Value Report with data collected and verified no more than thirty (30) days prior to September 30 of such year and having an effective date of September 30 of each calendar year;
(f) as soon as available but in any event (i) within 20 twenty (20) days of after the end of each Fiscal Month calendar month if Availability for each day is equal to or greater than $70,000,000 or (or, during ii) on the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 first Business Day falling three (3) days of after the end of each week)calendar week if Availability for any day is less than $70,000,000, and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewith;
(g) as soon as available but in any event within 20 twenty (20) days of after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be reasonably requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary detailed aging of the Borrower’s Accounts of the Borrower and PHI and each of their respective Subsidiaries, (A) including an all invoices aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branchinvoice date, and (2B) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as a summary specifying the Agent requestsname, in its Permitted Discretionaddress, and balance due for each Account Debtor;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriateappropriate in its Permitted Discretion, (2B) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3C) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 thirty (30) days of after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be reasonably requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
ten (k10) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any PlanPlan that is sponsored or maintained by the Borrower or a Subsidiary, a statement, signed by the chief financial officer an Authorized Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(mk) as soon as possible and in any event within 10 days ten (i10) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of any notice (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, environment and (ii) any notice alleging any violation of any Environmental Laws by Law, in the case of each of clause (i) and (ii), to the extent any Loan Partysuch liability or violation could reasonably be expected to have a Material Adverse Effect;
(pl) within thirty (30) days of each March 31 and September 30, an updated Customer List, certified as true and correct in all material respects by an Authorized Officer of the Borrower;
(i) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(aSections 6.01(a) or 6.01(b), an updated Customer List for the Borrower a listing of all Rate Management Obligations and PHI Banking Services Obligations then outstanding and their respective Subsidiaries(ii) within ten (10) Business Days of a Loan Party’s entry into a Rate Management Obligation or Banking Services Obligation notice of such transaction, certified as true in each case in form and correct by an Authorized Officer of the Borrower (it being understood that substance reasonably satisfactory to the Agent and including (A) the Lenders shall treat such Customer Lists as confidential information subject market terms thereof, (B) the net value to Section 9.11);
market value thereof, (qC) concurrently with the furnishing thereof to the unitholders any requirements of the Parent, copies of all financial statements, reports parties to post margin and proxy statements so furnished;
(rD) promptly upon the filing counterparty thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(sn) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. Notwithstanding the foregoing, so long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended and in effect from time to time, the obligations in paragraphs (a) and (b) of this Section 6.1 shall be deemed satisfied upon the filing (within the applicable time period set forth above) by the Borrower of any report (including on Form 10-K or 10-Q) with the Securities and Exchange Commission.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) as soon as available, and in any event within ninety one hundred twenty (120) days after the close of each Fiscal Year of the Parent Holdings and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof, unless (i) obtaining such a certificate is not reasonably economically feasible in the good faith judgment of the Borrower and (ii) Agent has consented in its sole discretion to the Loan Parties not delivering such certificate;
(b) as soon as available, and in any event within forty-five thirty (30) days after the close of the first three quarterly periods of each Fiscal Year Month of the Parent Holdings and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(dc) as soon as available, but in any event not more than sixty (60) days prior to the end of each Fiscal Year of the Borrower, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) Budget in form reasonably satisfactory to the Agent;
(ed) together with each of the financial statements required under Sections 6.1(a), ) and (b) (solely for the third, sixth, ninth and (ctwelfth Fiscal Months of each Fiscal Year), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - officer or controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(e) as soon as available:
(i) and in any event by November 15 of each year thereafter, a report on the Net Orderly Liquidation Value (the “Appraised Value Report”) of the Borrower’s Compression Units prepared by the Approved Appraiser, which report shall update the prior Appraised Value Report (or desk review delivered pursuant to clause (ii) below) with data collected and verified no more than 30 days prior to September 30 of such year and having an effective date of September 30 of such year; and
(ii) and in any event by May 15 of each year, a desk review of the most recently prepared Appraised Value Report (the “Appraised Value Report Desk Review”) prepared by the Approved Appraiser with adjustments for the unit value of any additions and/or deletions since the date of the most recent Appraised Value Report with data collected and verified no more than 30 days prior to March 31 of such year and having an effective date of March 31 of such year, based on average dollar value per unit of horsepower of such additions or deletions as set forth or implied in such Appraised Value Report.
(f) as soon as available but in any event within 20 (i) twenty (20) days of the end of each Fiscal Month calendar month if Availability for each day is equal to or greater than $20,000,000 or (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 ii) three (3) days of the end of each week)calendar week if Availability for any day is less than $20,000,000, and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewith;
(g) as soon as available but in any event within 20 twenty (20) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary detailed aging of the Borrower’s Accounts of the Borrower and PHI and each of their respective Subsidiaries, (1) including an all invoices aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, invoice date and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as a summary specifying the Agent requestsname, in its Permitted Discretionaddress, and balance due for each Account Debtor;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 thirty (30) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 thirty (30) days of filing thereof, copies of all tax returns filed by any Loan Party or the Managing General Partner with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Borrower, a statement of the Unfunded Liabilities of each Single Employer PlanPlan that is sponsored or maintained by Borrower or a Subsidiary, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA, if applicable;
(l) as soon as possible and in any event within 10 ten days after the Borrower (i) knows that any Reportable Event has occurred with respect to any PlanPlan that is sponsored or maintained by Borrower or a Subsidiary, a statement, signed by the chief financial officer an Authorized Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 thirty (30) days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer PlanPlan that is sponsored or maintained by Borrower or a Subsidiary;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(po) concurrently with the delivery within thirty (30) days of annual audited financial statements pursuant to Section 6.1(a)each March 31 and September 30, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower Borrower;
(it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)p) Reserved;
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(r) on the first Business Day of the month of March and September, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization and upon Agent’s request, a certificate of authority to do business from the appropriate governmental officer in each foreign jurisdiction where the Borrower is qualified to do business; and
(s) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party Customer will maintain, for itself and each Subsidiary, maintain a system of accounting established and administered in accordance with GAAP, and will furnish to the LendersMetal Lender:
(a) within ninety (90) days after the close of each Fiscal Year of the Parent BEM, its audited consolidated balance sheet and its Subsidiariesrelated statements of operations, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated stockholders’ equity and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets cash flows as of the end of and for such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarteryear, setting forth in each case in comparative form the figures for the applicable periodprevious Fiscal Year, all certified reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of BEM and its chief financial officer and prepared consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments)consistently applied;
(cb) within thirty forty-five (45) days after the close end of each of the first three Fiscal Quarters of each Fiscal MonthYear of BEM, its consolidated balance sheet and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of related statements of retained earnings operations, stockholders’ equity and a statement of cash flows for the period from the beginning as of the applicable Fiscal Year to the end of and for such Fiscal MonthQuarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the prior 12-month periodcorresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all prepared certified by one of its executive officers as presenting fairly in all material respects the financial condition and results of operations of BEM and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except for exclusion of footnotes and consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes and any matters;
(c) concurrently with any delivery of financial statements under Section 9.1(a) or 9.1(b) above, a certificate of an executive officer of BEM (i) showing the calculations necessary to determine compliance with this Agreement, and certified by its chief financial officer (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or vice president - controllerproposed to be taken with respect thereto;
(d) concurrently with any delivery of financial statements under Section 9.1(a) or 9.1(b) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available but in any event within twenty (20) days after the close of each Fiscal Month, a certificate as of the last day of such Fiscal Month (each a “Collateral Compliance Certificate”) detailing on a consolidating basis, in form reasonably acceptable to the Metal Lender, the quantity and location of all Precious Metal owned or otherwise held by the Customers (including all Precious Metal outstanding under Permitted Precious Metals Agreements and all Client Metal subject to any Client-Customer Arrangement) as well as Collateral supporting the Refining Reserves and Net Marked-to-Market Exposure of all Precious Metal Hedging Transactions, each of which Collateral Compliance Certificates shall serve as the basis for determining the Customers’ eligibility for additional Consignments and Precious Metal Hedging Transactions until such time as the Metal Lender receives an updated Collateral Compliance Certificate;
(f) as soon as available, but in any event not less more than 10 thirty (30) days prior to the end of such each Fiscal YearYear of BEM, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of BEM for the Parent for each month of such upcoming Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;Year; and
(g) as soon as available but in promptly following any event within 20 days of the end of each Fiscal Month (orrequest therefor, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (includingregarding the operations, without limitationbusiness affairs and financial condition of the Customers, non-financial information as more fully described on Schedule 6.1(s)) or compliance with the terms of this Agreement, as the Agent or any Metal Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Precious Metals Agreement (Brush Engineered Materials Inc)
Financial and Collateral Reporting. Each Loan Party The Domestic Borrower will maintain, for itself and each Subsidiaryof its Subsidiaries, a system of accounting established and administered in accordance to produce financial statements that conform with GAAP, and will will, through the Agent, furnish to the Lenders:
(a) within ninety 120 days after the close of each Fiscal Year of the Parent Domestic Borrower and its Subsidiaries, an unqualified (as to scope and without a going concern or similar qualifier) audit report certified by independent certified public accountants reasonably acceptable to the Required LendersAgent, prepared in all material respects in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be (1) prepared in accordance with GAAP or (2) certified by such accountants), including balance sheets as of the end of such Fiscal Year, related Year and a statement of profit and loss and reconciliations of statements of retained earningsfor the period then ended, and a consolidated statement of changes in shareholders' equity and a consolidated statement of cash flows, accompanied by (i) any 77 management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five 50 days after the close of the first three quarterly periods of each Fiscal Year of the Parent Domestic Borrower and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating (which consolidating statements need not be prepared in accordance with GAAP) statements of profit and loss and reconciliations of statements of retained earnings for the period then ended, and a consolidated statement of changes in shareholders' equity and a consolidated statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in all material respects in accordance with GAAP (except for consolidating statements need not be prepared in accordance with GAAP and except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty 30 days after the close of each Fiscal MonthMonth of the Domestic Borrower and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating (which consolidating statements may not be prepared in accordance with GAAP) statements of profit and loss and reconciliations of statements of retained earnings for the period then ended, and a consolidated statement of changes in shareholders' equity and a consolidated statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in all material respects in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by (1) its chief financial officer or vice president - controller(2) its controller and an executive officer;
(d) as soon as available, but in any event not less more than 10 30 days prior to the end of each Fiscal Year, but prior to the end of such Fiscal Year, a draft copy on a business unit basis of the plan and forecast of the Domestic Borrower and its Subsidiaries of the next Fiscal Year on an annual basis and, not more than 90 days after the end of the Fiscal Year, a final copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Domestic Borrower and its Subsidiaries for each month of such the next Fiscal Year (the “"Projections”") in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E (a “"Compliance Certificate”") signed by the (1) chief financial officer, vice president - officer or (2) controller or treasurer and executive officer of the Domestic Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) including, without limitation, compliance with the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then Ratio, if applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) At the Domestic Borrower's option, as soon as available but available, and in any event within 20 days of no later than 3 Business Days after the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each calendar week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to Report showing the computation of the Aggregate Borrowing Base in reasonable detail as calculated of the close of business on the last day of the immediately preceding week, together with such other information as is therein required, in each case prepared by the Domestic Borrower and defined in certified to by the 2010 Parent Indenture and supporting information in connection therewithDomestic Borrower's chief financial officer or controller;
(g) as soon as available but in any event within 20 days Business Days of the end of each Fiscal Month (orMonth, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent Agent, as of the period then ended, an Aggregate Borrowing Base Certificate and supporting information, including, without limitation, a Borrowing Base Certificate from each Loan Party, in connection therewith;
(h) as soon as available but in its Permitted Discretion)any event within 20 days (30 days with respect to subpart (iv) below) of the end of each Fiscal Month and at such other times as may be requested by the Agent, as of the period then ended:
(i) a detailed accounts receivable aging for each Loan Party (1) a summary aging of specifying the Accounts of the Borrower name and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2) reconciled to the Aggregate Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Loan Party's Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, including any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower such Loan Party are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower such Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries such Loan Party and complaints and claims made against themsuch Loan Party), and (3) reconciled to the such Loan Party's Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Domestic Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;; and
(iv) a reconciliation of the applicable Loan Parties' Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers such Loan Parties' books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(hi) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging or listing of the Borrower’s and PHI’s Loan Parties' accounts payable;
(ij) promptly upon the Agent’s request (in its Permitted Discretion):'s request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Loan Parties in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;; and
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;.
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Domestic Borrower, a statement of the Unfunded Liabilities of each Single Employer Plan, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA;
(l) as soon as possible and in any event within 10 days after the Borrower (i) any Loan Party knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrowersuch Loan Party, describing said Reportable Event and the action which the Borrower such Loan Party proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(pn) concurrently with within 30 days after the delivery of annual audited financial statements pursuant to Section 6.1(a)first date on which the Availability is less than $25,000,000 and, as the Agent may request, no more than once during any twelve-month period thereafter, so long as the Availability remains less than $25,000,000, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)each Loan Party;
(qo) concurrently with the furnishing thereof to the unitholders shareholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(rp) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(sq) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. In addition, not later than 20 days after the end of each Fiscal Month, the Domestic Borrower shall cause each Loan Party to submit a Borrowing Base Certificate to the Domestic Borrower with respect to its borrowing base for the immediately preceding month, and the Domestic Borrower shall retain such Borrowing Base Certificate and deliver same to the Agent upon the Agent's request therefor.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party Customer will maintain, for itself and each Subsidiary, maintain a system of accounting established and administered in accordance with GAAP, and will furnish to the LendersMetal Lender:
(a) within ninety (90) days after the close of each Fiscal Year of the Parent BEM, its audited consolidated balance sheet and its Subsidiariesrelated statements of operations, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated stockholders’ equity and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets cash flows as of the end of and for such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarteryear, setting forth in each case in comparative form the figures for the applicable periodprevious Fiscal Year, all certified reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of BEM and its chief financial officer and prepared consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments)consistently applied;
(cb) within thirty forty-five (45) days after the close end of each of the first three Fiscal Quarters of each Fiscal MonthYear of BEM, its consolidated balance sheet and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of related statements of retained earnings operations, stockholders’ equity and a statement of cash flows for the period from the beginning as of the applicable Fiscal Year to the end of and for such Fiscal MonthQuarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the prior 12-month periodcorresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all prepared certified by one of its executive officers as presenting fairly in all material respects the financial condition and results of operations of BEM and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except for exclusion of footnotes and consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes and any matters;
(c) concurrently with any delivery of financial statements under Section 9.01(a) or 9.01(b) above, a certificate of an executive officer of BEM (i) showing the calculations necessary to determine compliance with this Agreement, and certified by its chief financial officer (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or vice president - controllerproposed to be taken with respect thereto;
(d) concurrently with any delivery of financial statements under Section 9.01(a) or 9.01(b) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available but in any event within twenty (20) days after the close of each Fiscal Month, a certificate as of the last day of such Fiscal Month (each a “Collateral Compliance Certificate”) detailing on a consolidating basis, in form reasonably acceptable to the Metal Lender, the quantity and location of all Precious Metal owned or otherwise held by the Customers (including all Precious Metal outstanding under Permitted Precious Metals Agreements and all Client Metal subject to any Client-Customer Arrangement) as well as Collateral supporting the Refining Reserves and Forward Contract Exposure, each of which Collateral Compliance Certificates shall serve as the basis for determining the Customers’ eligibility for additional Consignments and Forward Contracts until such time as the Metal Lender receives an updated Collateral Compliance Certificate;
(f) as soon as available, but in any event not less more than 10 thirty (30) days prior to the end of such each Fiscal YearYear of BEM, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of BEM for the Parent for each month of such upcoming Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;Year; and
(g) as soon as available but in promptly following any event within 20 days of the end of each Fiscal Month (orrequest therefor, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (includingregarding the operations, without limitationbusiness affairs and financial condition of the Customers, non-financial information as more fully described on Schedule 6.1(s)) or compliance with the terms of this Agreement, as the Agent or any Metal Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Precious Metals Agreement (Brush Engineered Materials Inc)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its SubsidiariesSubsidiaries (starting with the Fiscal Year ending September 30, 2005), an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controllerofficer;
(d) as soon as available, but in any event not more than 30 days prior to the end of each Fiscal Year of the Parent, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller officer or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including including, without duplication, the calculation of (ithe Excess Proceeds Reserve Amount at such time) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week)Month, and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI Petro and each of their respective its Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;.
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Parent, a statement of the Unfunded Liabilities of each Single Employer Plan, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws or any federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(po) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective SubsidiariesBorrower, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qp) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(rq) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(r) during the months of November through March, as soon as possible and in any event on each Monday, the weekly accounts receivable agings and inventory updates with respect to the prior week; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Star Group, L.P.)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for 90 each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;; 91
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning 92 of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial non‑financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Star Group, L.P.)
Financial and Collateral Reporting. Each Loan Party Customer will maintain, for itself and each Subsidiary, maintain a system of accounting established and administered in accordance with GAAP, and will furnish to the Metal Lenders:
(a) within ninety (90) days after the close of each Fiscal Year of the Parent BEM, its audited consolidated balance sheet and its Subsidiariesrelated statements of operations, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated stockholders’ equity and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets cash flows as of the end of and for such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarteryear, setting forth in each case in comparative form the figures for the applicable periodprevious Fiscal Year, all certified reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of BEM and its chief financial officer and prepared consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments)consistently applied;
(cb) within thirty forty-five (45) days after the close end of each of the first three Fiscal Quarters of each Fiscal MonthYear of BEM, its consolidated balance sheet and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of related statements of retained earnings operations, stockholders’ equity and a statement of cash flows for the period from the beginning as of the applicable Fiscal Year to the end of and for such Fiscal MonthQuarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the prior 12-month periodcorresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all prepared certified by one of its executive officers as presenting fairly in all material respects the financial condition and results of operations of BEM and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except for exclusion of footnotes and consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes and any matters;
(c) concurrently with any delivery of financial statements under Section 9.1(a) or 9.1(b) above, a certificate of an executive officer of BEM certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and certified by its chief financial officer any action taken or vice president - controllerproposed to be taken with respect thereto;
(d) concurrently with any delivery of financial statements under Section 9.1(a) or 9.1(b) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available but in any event within twenty (20) days after the close of each Fiscal Month, a certificate as of the last day of such Fiscal Month (each a “Collateral Compliance Certificate”) detailing on a consolidating basis, in form reasonably acceptable to the Metal Lenders, the quantity and location of all Metal owned or otherwise held by the Customers (including all Metal outstanding under Permitted Metals Agreements and all Client Metal subject to any Client-Customer Arrangement) accompanied by a listing of the total insurance coverage with respect to Consigned Metal at each location as well as Collateral supporting the Refining Reserves, each of which Collateral Compliance Certificates shall serve as the basis for determining the Customers’ eligibility for additional Consignments until such time as the Metal Lenders receive an updated Collateral Compliance Certificate;
(f) as soon as available, but in any event not less more than 10 thirty (30) days prior to the end of such each Fiscal YearYear of BEM, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of BEM for the Parent for each month of such upcoming Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;Year; and
(g) as soon as available but in promptly following any event within 20 days of the end of each Fiscal Month (orrequest therefor, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern into the environment, and (ii) any notice alleging any violation of any Environmental Laws by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (includingregarding the operations, without limitationbusiness affairs and financial condition of the Customers, non-financial information as more fully described on Schedule 6.1(s)) or compliance with the terms of this Agreement, as the Agent or any Lender Metal Lenders may from time to time reasonably request.
Appears in 1 contract
Samples: Consignment Agreement (Brush Engineered Materials Inc)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent Company and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal MonthMonth of the Company and its Subsidiaries, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controllerofficer;
(d) as soon as available, but in any event not more than 60 days prior to the end of each Fiscal Year of the Company, but not less than 10 30 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Company for each month quarter of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (orcalendar month, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be necessary to re-determine availability of Advances hereunder or as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a an Aggregate Borrowing Base Certificate, which will include information relating to the together with a duly executed Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate for each Borrower which calculates such Borrower’s Borrowing Base, and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary aging of the Accounts of the each Borrower and PHI and owing by each of their respective Subsidiariessuch Borrower’s Account Debtors and, if requested by Agent, a detailed aging of each Borrower’s Accounts including an all invoices aged accounts receivable total for each Account Debtorby invoice or due date, supported by a total page from the system summary aging for each branch, and (2) in either case reconciled to the each such Borrower’s Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiarieseach Borrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location class (showing Inventory in transitraw material, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreementwork-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted first-in, first-out basis or average cost basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the each such Borrower’s Borrowing Base Certificate delivered as of such datedate prepared in a manner reasonably acceptable to the Agent;
(iii) a worksheet of calculations prepared by the each Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the each Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their such Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the each Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;.
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s Borrowers’ accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 thirty (30) days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue ServiceService (without schedules and other attachments thereto, unless otherwise requested by Agent);
(k) as soon as possible and in any event within 300 two-hundred and seventy days after the close of the Fiscal Year of the Company, a statement of the Unfunded Liabilities of each Single Employer Plan, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA;
(l) as soon as possible and in any event within 10 ten days after the any Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the such Borrower, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 thirty (30) days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(o) [reserved];
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrowers, copies of all financial statements, reports and proxy statements so furnished;
(rq) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(r) as soon as possible and in any event within 20 days after the end of each calendar month, a detailed listing of all advances of proceeds of Loans made by the Borrower Representative to each Borrower during the immediately preceding calendar month and a detailed listing of all intercompany loans made by the Borrowers during such calendar month;
(s) upon the request of Agent, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization; and
(st) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Action Performance Companies Inc)
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) as soon as available, and in any event within ninety one hundred twenty (120) days after the close of each Fiscal Year of the Parent Holdings and its Subsidiaries, an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof, unless (i) obtaining such a certificate is not reasonably economically feasible in the good faith judgment of the Borrower and (ii) Agent has consented in its sole discretion to the Loan Parties not delivering such certificate;
(b) as soon as available, and in any event within forty-five (45) days after the close of the first three quarterly periods (3) Fiscal Quarters of each Fiscal Year of the Parent Holdings and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(dc) as soon as available, but in any event not more than sixty (60) days prior to the end of each Fiscal Year of the Borrower, but not less than 10 thirty (30) days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) Budget in form reasonably satisfactory to the Agent;
(ed) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - officer or controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(e) as soon as available, an Appraised Value Report, which report shall update the prior Appraised Value Report with data collected and verified no more than thirty (30) days prior to September 30 of such year and having an effective date of September 30 of such year.
(f) as soon as available but in any event within 20 (i) twenty (20) days of the end of each Fiscal Month calendar month if Availability for each day is equal to or greater than $20,000,000 or (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 ii) three (3) days of the end of each week)calendar week if Availability for any day is less than $20,000,000, and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture Certificate and supporting information in connection therewith;
(g) as soon as available but in any event within 20 twenty (20) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the period then ended:
(1i) a summary detailed aging of the Borrower’s Accounts of the Borrower and PHI and each of their respective Subsidiaries, (A) including an all invoices aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branchinvoice date, and (2B) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as a summary specifying the Agent requestsname, in its Permitted Discretionaddress, and balance due for each Account Debtor;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2B) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3C) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 thirty (30) days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Agent, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 thirty (30) days of filing thereof, copies of all tax returns filed by any Loan Party or the Managing General Partner with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 two-hundred and seventy (270) days after the close of the Fiscal Year of the Borrower, a statement of the Unfunded Liabilities of each Single Employer PlanPlan that is sponsored or maintained by Borrower or a Subsidiary, a certified financial statement of such Single Employer Planas correct by an actuary enrolled under ERISA, if applicable;
(l) as soon as possible and in any event within 10 ten (10) days after the Borrower (i) knows that any Reportable Event has occurred with respect to any PlanPlan that is sponsored or maintained by Borrower or a Subsidiary, a statement, signed by the chief financial officer an Authorized Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 thirty (30) days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer PlanPlan that is sponsored or maintained by Borrower or a Subsidiary;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(kwithin ten (10) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(po) concurrently with the delivery within thirty (30) days of annual audited financial statements pursuant to Section 6.1(a)each March 31 and September 30, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower Borrower;
(it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)p) Reserved;
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements (other than registration statements on Form S-8 or any registration statement filed in connection with a DRIP) and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission;
(r) on the first Business Day of the month of March and September, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization and upon Agent’s request, a certificate of authority to do business from the appropriate governmental officer in each foreign jurisdiction where the Borrower is qualified to do business; and
(s) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request. Notwithstanding the foregoing, so long as Holdings is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended and in effect from time to time, the obligations in paragraphs (a), (b) and (q) of this Section 6.1 shall be deemed satisfied upon the filing (within the applicable time period set forth above) by Holdings’ of any report (including, without limitation on Form 10-K or 10-Q) with the Securities and Exchange Commission.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) (i) as soon as available, but in any event within 5 days of the 2005 Filings, and (ii) after the 2005 Filings have been made, on the date of the filing of Form 10-K with the Securities and Exchange Commission, but in no event later than ninety days after the close of each Fiscal Year of the Parent Company and its Subsidiaries, an unqualified audit report certified without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants)consolidated, including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (iA) any management letter prepared by said accountants and (iiB) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Event of Default or Unmatured Default, or if, in the opinion of such accountants, any Event of Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within after the 2005 Filings have been made on the date of the filing of Form 10-Q with the Securities and Exchange Commission, and in no event later than forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent Company and its Subsidiaries, a consolidated and consolidating unaudited balance sheets sheet as at the close of each such Fiscal Quarter and a consolidated and consolidating profit and loss and reconciliations reconciliation of statements of retained earnings surplus statement and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) until the 2005 Filings have been made, within thirty days after the close of each Fiscal MonthMonth of the Company and its Subsidiaries, a consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries sheet as at the close of each such Fiscal Month and a consolidated and consolidating profit and loss and reconciliations reconciliation of statements of retained earnings surplus statement, and a statement of certain cash flows for flow items deemed necessary by the period Administrative Agent in its discretion, from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controllerofficer;
(d) as soon as available, but not less later than 10 thirty days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of the Parent Company for each month Fiscal Quarter of such the following Fiscal Year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (cb), a compliance certificate in substantially the form of Exhibit E D (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Event of Default or Unmatured Default exists, or if any an Event of Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI and each of their respective Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective Subsidiaries, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against them), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible practicable and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 ten days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(mg) as soon as possible practicable and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any material notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any material violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective Subsidiaries, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(qh) concurrently with the furnishing thereof to the unitholders shareholders of the ParentBorrower, copies of all financial statements, reports and proxy statements so furnished;
(r) ; and promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and;
(si) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent Agents or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lenders:
(a) within ninety days after the close of each Fiscal Year of the Parent and its SubsidiariesSubsidiaries (starting with the Fiscal Year ending September 30, 2011), an unqualified audit report certified by independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations of statements of retained earnings, and a statement of cash flows, accompanied by (i) any management letter prepared by said accountants and (ii) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof;
(b) within forty-five days after the close of the first three quarterly periods of each Fiscal Year of the Parent and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such Fiscal Quarter and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty days after the close of each Fiscal Month, consolidated and consolidating unaudited balance sheets of the Parent and its Subsidiaries at the close of each such Fiscal Month and consolidated and consolidating profit and loss and reconciliations of statements of retained earnings and a statement of cash flows for the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller;
(d) as soon as available, but not less than 10 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent for each month of such Fiscal Year (the “Projections”) in form reasonably satisfactory to the Agent;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable6.25) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(f) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.017.5% of the Aggregate Revolving Commitment, within 3 days of the end of each week), and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewith;
(g) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.017.5% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the period then ended:
(1) a summary aging of the Accounts of the Borrower and PHI Petro and each of their respective its Subsidiaries, including an aged accounts receivable total for each Account Debtor, supported by a total page from the system summary aging for each branch, and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted Discretion;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrower’s Inventory, in form reasonably satisfactory to the Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average basis) or market and adjusted for Reserves as the Agent has previously indicated to the Borrower are deemed by the Agent to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against themthe Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their the Borrower’s general ledgers ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.017.5% of the Aggregate Revolving Commitment, within 3 days of the end of each week) and at such other times as may be requested by the Agent (in its Permitted Discretion), as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the Agent’s request (in its Permitted Discretion):
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 20 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 days after the Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(m) as soon as possible and in any event within 10 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws or any federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a), an updated Customer List for the Borrower and PHI and their respective SubsidiariesBorrower, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11);
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which any Loan Party files with the Securities and Exchange Commission; and
(s) such other information (including, without limitation, non-financial information as more fully described on Schedule 6.1(s)) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial and Collateral Reporting. Each Loan Party will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and will furnish to the LendersLender:
(a) (i) within ninety 90 days after the close of each Fiscal Year of the Parent Borrowers and its their Subsidiaries, an unqualified audit report certified audited financial statements of the Borrowers and their Subsidiaries as of the end of such Fiscal Year, on a consolidated basis and prepared in accordance with GAAP, certified, without qualification or exception, by a firm of independent certified public accountants reasonably acceptable to the Required Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis Lender (consolidating statements need not be certified by such accountants“Auditors”), including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliations reconciliation of statements of retained earningssurplus statements, and a statement of cash flows, accompanied by (iA) any management letter prepared by said accountants such Auditors and (iiB) for Fiscal Years ending in and after June, 2004, a certificate of said accountants such Auditors that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountantsAuditors, any Default or Unmatured Default shall exist, stating the nature and status thereofthereof and (ii) within 90 days after the close of each Fiscal Year of the Borrowers and their Subsidiaries ending in and after June, 2004, financial statements of the Borrowers and their Subsidiaries as of the end of each such Fiscal Year, on a Designated Consolidating Basis with respect thereto and prepared in accordance with GAAP, including balance sheets as of the end of such Fiscal Year, related profit and loss and reconciliation of surplus statements, and a statement of cash flows, accompanied by the report of such Auditors with respect to such consolidating statements satisfactory to the Lender;
(b) within forty-five 45 days after the close of the first three quarterly periods of each Fiscal Year of the Parent Borrowers and its their Subsidiaries, consolidated and consolidating (i) unaudited balance sheets as at the close of each such Fiscal Quarter on a consolidated basis and consolidated the Designated Consolidating Basis with respect thereto and consolidating (ii) profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows flows, each on a consolidated basis and the Designated Consolidating Basis with respect thereto, for such Fiscal Quarter and the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the applicable period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments);
(c) within thirty 30 days after the close of each Fiscal MonthMonth of the Borrowers and their Subsidiaries, consolidated and consolidating (i) unaudited balance sheets of the Parent and its Subsidiaries as at the close of each such Fiscal Month on a consolidated basis and consolidated the Designated Consolidating Basis with respect thereto and consolidating (ii) profit and loss and reconciliations reconciliation of surplus statements of retained earnings and a statement of cash flows flows, each on a consolidated basis and the Designated Consolidating Basis with respect thereto, for such Fiscal Month and the period from the beginning of the applicable Fiscal Year to the end of such Fiscal Month, setting forth in each case in comparative form the figures for the prior 12-month period, all certified by its chief financial officer and prepared in accordance with GAAP (except for exclusion of footnotes and subject to normal year-end audit adjustments) and certified by its chief financial officer or vice president - controller);
(d) as soon as available, but in any event not more than 90 days prior to the end of each Fiscal Year of the Consolidated Group, but not less than 10 30 days prior to the end of such Fiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Parent Consolidated Group for each month of such Fiscal Year (the “Projections”) on a consolidated basis and the Designated Consolidating Basis with respect thereto in form reasonably satisfactory to the AgentLender;
(e) together with each of the financial statements required under Sections 6.1(a), (b) and (c), a compliance certificate in substantially the form of Exhibit E (a “Compliance Certificate”) signed by the chief financial officer, vice president - controller or treasurer officer of the Borrower Representative showing the calculations necessary to determine compliance with this Agreement (including calculation of (i) Availability for purposes of Sections 6.16 and 6.25 and (ii) the Fixed Charge Coverage Ratio and Senior Secured Leverage Ratio for purposes of Section 6.28 to the extent then applicable) and the Applicable Margin and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;.
(f) not less frequently than weekly, and more frequently if the Lender shall require or the Borrower Representative shall so elect, the Borrower Representative shall deliver to the Lender: (i) a Borrowing Base Certificate by no later than Tuesday of each week (which is based on values as soon as available but in any event within 20 days of the end of each Fiscal Month immediately preceding Friday), (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% ii) reports of the Aggregate Revolving CommitmentBorrowers’ sales, within 3 days credits to sales or credit memoranda applicable to sales, collections and non-cash charges (from whatever source, including sales and noncash journals or other credits to Accounts) for the applicable period, and acceptable supporting documentation thereto (including, a report indicating the dollar value of the end Borrowers’ Eligible Accounts, and all other information deemed necessary by the Lender to determine levels of each weekthat which is and is not Eligible Accounts), and at such other times as may be requested by (iii) reporting the Agent (in its Permitted Discretion), value of the Borrowers’ Inventory as of the period then ended, a Borrowing Base Certificate, which will include information relating to the Borrowing Base as calculated and defined in the 2010 Parent Indenture and supporting information in connection therewithimmediately preceding month;
(g) as soon as available but in any event within 20 15 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Lender, as of the period then ended:
(i) a detailed aged trial balance of the Borrowers’ Accounts (1) a summary aging of specifying the Accounts of the Borrower name, address, and PHI and each of their respective Subsidiaries, including an aged accounts receivable total balance due for each Account Debtor, supported by a total page from the system summary aging for each branch, Debtor and (2) reconciled to the Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Agent, together with such transaction analysis or roll-forward information as the Agent requests, in its Permitted DiscretionLender;
(ii) a schedule detailing the Inventory of the Borrower and PHI and their respective SubsidiariesBorrowers’ Inventory, in form reasonably satisfactory to the AgentLender, (1) by location (showing Inventory in transit, including any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a weighted average first-in, first-out basis) or market and adjusted for Reserves as the Agent Lender has previously indicated to the Borrower Representative are deemed by the Agent Lender to be appropriate, (2) including a report of any variances or other results of Inventory counts performed by the Borrower Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the a Borrower or PHI or any of their respective Subsidiaries and complaints and claims made against thema Borrower), and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrower Representative to determine Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts Receivable, Eligible Heating Oil and Other Fuel Inventory and Eligible Other Inventory and the reason for such exclusion;; and
(iv) a reconciliation of the Borrower’s Accounts and Inventory of the Borrower, PHI and their respective Subsidiaries between the amounts shown in their general ledgers the Borrower’s books and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance set forth in statements given to the Borrower under this Agreement;
(h) as soon as available but in any event within 20 15 days of the end of each Fiscal Month (or, during the Seasonal Availability Period or to the extent Availability is less than 15.0% of the Aggregate Revolving Commitment, within 3 days of the end of each week) calendar month and at such other times as may be requested by the Agent (in its Permitted Discretion)Lender, as of the month then ended, a schedule and aging of the Borrower’s and PHI’s accounts payable;
(i) promptly upon the AgentLender’s request (in its Permitted Discretion):request:
(i) copies of invoices in connection with the invoices issued by the Borrower or PHI or any of their respective Subsidiaries Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory, Machinery Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(j) on the first Business Day of the month of March and September, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(k) as soon as possible and in any event within 20 15 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) as soon as possible and in any event within 300 days after the close of the Fiscal Year of each Single Employer Plan, a certified financial statement of such Single Employer Plan;
(l) as soon as possible and in any event within 10 90 days after the close of the Fiscal Year of the Borrowers, a statement of the Unfunded Liabilities and the required annual contribution of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA;
(m) as soon as possible and in any event within ten days after any Borrower (i) knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the BorrowerBorrower Representative, describing said Reportable Event and the action which the Borrower proposes Borrowers propose to take with respect thereto; (ii) receives a determination that any Plan is, or is expected to be in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA), a statement describing such status determination and the action which the Borrower proposes to take with respect thereto; or (iii) receives any determination that a Multiemployer Plan is expected in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA), a copy of such determination;
(mn) as soon as possible and in any event within 10 15 days (i) of filing therewith with the PBGC, the U.S. Internal Revenue Service or any other governmental entity, a copy of each annual report or other filing with respect to any Single Employer Plan;
(n) as soon as possible and in any event with 10 days following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that the Borrower or any member of its Controlled Group may request with respect to any Multiemployer Plan to which it is a party; provided, that if the Borrower or any member of its Controlled Group has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Agent, the Borrower and/or the Controlled Group members shall promptly make a request for such documents and notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Agent (on behalf of each requesting Lender) promptly after receipt thereof, and further provided, that the rights granted to the Agent in this section shall not be exercised more than once during a 12-month period;
(o) as soon as possible and in any event within 10 ten days after receipt by any Loan Party and to the extent pertaining to a matter that could have a material impact on any Loan Party, a copy of (i) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the release by any Loan Party, or any other Person of any Materials of Environmental Concern toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any Environmental Laws federal, state or local environmental, health or safety law or regulation by the any Loan Party;
(p) concurrently with the delivery of annual audited financial statements pursuant to Section 6.1(a)within 30 days after each March 31 and September 30, an updated Customer List for the Borrower and PHI and their respective SubsidiariesList, certified as true and correct by an Authorized Officer of the Borrower (it being understood that the Agent and the Lenders shall treat such Customer Lists as confidential information subject to Section 9.11)Representative;
(q) concurrently with the furnishing thereof to the unitholders of the Parent, copies of all financial statements, reports and proxy statements so furnished;
(r) promptly upon the filing thereofthereof and in any event within 10 days after filing therewith, copies of all registration statements and annual, quarterly, monthly or other regular reports on Form 8-K which any Loan Party files with the Securities and Exchange Commission;
(r) promptly upon incurrence thereof until the applicable Problem Financing Statement shall be terminated in accordance with applicable law, notice of the amount of all payables to any of the secured parties, or their assignees, listed on the Problem Financing Statements; and
(s) such other information (including, without limitation, including non-financial information as more fully described on Schedule 6.1(s)information) as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Magnetek Inc)
