Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenders: (a) as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents. (b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form; (c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments; (i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity); (e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them; (f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes; (g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein; (h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report; (i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging; (j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party; (k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder); (l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month; (i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; (n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement; (o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act; (p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report; (q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and (r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Term Loan and Security Agreement (Birks Group Inc.), Term Loan and Security Agreement (Birks Group Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except on consolidated bases for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, a “going concern” or similar itemslike qualification or exception and without any qualification or exception as to the scope of such audit) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents Agent (it being acknowledged agreed that KPMG PricewaterhouseCoopers LLP shall be is acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent; provided, however, that such requirements for the Agents.furnishing of such annual financial statements may be fulfilled by the furnishing of the annual report of Borrowers and Subsidiaries on Form 10-K (within the 120 day period set forth herein), which includes financial statements, as filed with the Securities and Exchange Commission, for the applicable Fiscal Year, and notice to Agent of such filing (within the 120 day period set forth herein);
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes; provided, along withhowever, after that such requirements for the end furnishing of such quarterly financial statements may be fulfilled by the furnishing of the second Fiscal Quarter quarterly report of each Fiscal YearBorrowers and Subsidiaries on Form 10-Q (within the 45 day period set forth herein), a management’s discussion and analysis in connection which includes financial statements, as filed with the foregoingSecurities and Exchange Commission, provided that at for the end applicable Fiscal Quarter, and notice to Agent of such filing (within the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;45 day period set forth herein)
(c) as soon as available, but and in any event not later than within 30 days after the end of each fiscal month (including, without limitation, except for the third last month of each Fiscal QuarterYear, in which case, within 60 days after the end of such fiscal month), unaudited balance sheets as of the end of such fiscal month and the related statements of income and cash flows and same store sales performance metrics flow for such fiscal month and for the portion of the Fiscal Year then elapsed, on a consolidated basis bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholdersshareholders in their capacities as such; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of Agent’s or any AgentLender request, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents annual report filed or notices described to be filed in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request connection with respect to any Guaranteed Pension each Plan or Multiemployer Foreign Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Loan and Security Agreement (Olympic Steel Inc), Loan and Security Agreement (Olympic Steel Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent (provided, that the Agents documents required to be delivered pursuant to clauses (a), (b) and (h) below shall be deemed to have been delivered on the Lenders:date on which such documents are posted on the Securities and Exchange Commission’s website at xxx.xxx.xxx):
(a) as soon as available, but and in any event not no later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of nationally recognized standing selected by the Borrowers and Parent or otherwise acceptable to the Agents Agent (it being acknowledged that KPMG LLP which audit shall be acceptable without a “going concern” or like qualification or exception and without any qualification or exception as to the Agentsscope of such audit (except for any such qualification pertaining to the maturity of any Debt occurring within 15 months of the relevant audit or any breach or anticipated breach of any financial covenant)), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year Year; and (ii) 60 days after the end of each Fiscal Year, internal management financial statements (balance sheet, statement of income, and cash flow statement) as of the end of such Fiscal Year, on a consolidated basis for Parent and its Subsidiaries; provided, that the financial statements delivered pursuant to this clause (ii) shall be delivered to Agent for informational purposes only and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to calculation of the Agents.Applicable Margin in the manner described therein;
(b) as soon as available, but and in any event not no later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of that is not the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each a Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by chief financial officer (or other officer holding a Senior Officer similar role) of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations of Parent and its Subsidiaries on a consolidated basis as of such date and for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, that is not the third last month of each a Fiscal Year or Fiscal Quarter), unaudited internal management financial statements (balance sheets sheet, statement of income, and cash flow statement) as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsedmonth, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for (i) the preceding Fiscal Year and (ii) such period set forth in the most recent projections provided delivered pursuant to Section 10.1.2(g10.1.2(f) hereof, in each case on a month-to-date and year-to-date basis with respect to profit and loss and cash flow statements, in each case certified by the chief financial officer (or other officer holding a Senior Officer similar role) of the Borrowers Parent as prepared in accordance with GAAP (other than such same store sales performance metrics)its normal internal, and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsinterim reporting practices;
(id) concurrently with within the time frame specified for the delivery of financial statements under clauses (aa)(i), (ba)(ii) and (cb) above and above, (iii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by the chief financial officer (or other officer holding a Senior Officer similar role) of each Borrower (Parent; provided, that the Compliance Certificate delivered with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of the financial statements under pursuant to clause (aa)(ii) above, shall be delivered to Agent for informational purposes and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee calculation of the board Applicable Margin in the manner described in the definition thereof only and (ii) a copy of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, Credit and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has Collection Guidelines if changes have been no change in such information made since the date of the Schedules delivered on the Third Amendment Effective Closing Date or the date of the most recent Schedules delivery of the Credit and Collection Guidelines (which Credit and Collection Guidelines may, in the case of Confidential Information, be redacted);
(e) together with the financial statements delivered pursuant to this Section and/or identifying 10.1.2(a)(i), a copy of the final management letters (if any) submitted to Borrowers by their accountants in connection with such changesfinancial statements, if any;
(gf) from time to time upon request of any Agent, but in any event no not later than 30 60 days prior to after the beginning commencement of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s reasonable request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Parent or any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Loan Party Borrower files with any Governmental Authority, except the Securities and Exchange Commission or any other Governmental Authority(which shall be deemed to have been delivered when filed), or any securities exchange; and copies of any press releases or other statements made available by Parent or a Loan Party Borrower to the public concerning material changes to or developments in the business of Parent or such Loan PartyBorrower;
(i) evidence as to Borrowers’ compliance with Consumer Finance Laws as reasonably requested by Agent from time to time;
(j) promptly, notice of any designation of any Real Estate subject to a Mortgage or Leasehold Mortgage as being located in a special flood hazard zone;
(k) compliance certificates during the Covenant Relief Period, with each Borrowing Base Report (or and such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereundertimes as reasonably requested by Agent), in each case, at the times and in the forms delivered Borrowers shall provide a calculation of Liquidity to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);Agent together with such information as Agent may reasonably request; and
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may reasonably request (at its reasonable discretion or at the reasonable request of any Lender) from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or businessbusiness of any Obligor. Documents Information required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, this Section 10.1.2 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall be have been posted by Agent on the date (i) on SyndTrak, IntraLinks or a similar site to which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents Agent and the Lenders have been granted access or shall be available on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx or on the website of Parent. Information required to be delivered pursuant to this Section 10.1.2 may also be delivered by electronic communications pursuant to procedures approved by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Each Lender shall be solely responsible for requesting delivery to it or timely accessing posted documents and maintaining its copies of such documents.
Appears in 2 contracts
Samples: Loan Agreement (Conns Inc), Loan Agreement (Conns Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish Deliver to the Agents and BANK such information respecting the Lendersbusiness, properties, condition or operation, financial or otherwise, of the BORROWER as the BANK may from time to time reasonably request, including:
(a) as soon as available, but available and in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) within 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year fiscal year of the Borrowers (includingBORROWER, without limitationits audited annual financial statements, the fourth Fiscal Quarter which shall include at least its balance sheet and related statements of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)operations, unaudited balance sheets stockholders’ equity and cash flow as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiariesyear, setting forth in comparative form corresponding the figures for the preceding Fiscal Year previous fiscal year, all reported on by independent public accountants of recognized national standing to the effect that such financial statements present fairly in all material respects the financial condition and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer results of operations of the Borrowers as prepared BORROWER in accordance with GAAP consistently applied;
(other than with respect to b) if available, as soon as available and in any event within 90 days after the end of the first semiannual reporting period of each fiscal year of the BORROWER, its semiannual financial statements, which shall include at least its balance sheet and related statements of operations, stockholders’ equity and cash flow as of the end of and for such same store sales performance metrics)semiannual reporting period, and setting forth in comparative form the figures for the corresponding period of the previous fiscal year, presenting fairly presenting in all material respects the financial position condition and results of operations for such Fiscal Quarter of the BORROWER in accordance with GAAP consistently applied (except as differences from GAAP shall have been disclosed to, and periodapproved by, the BANK), subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;footnotes; and
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with any delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized responsible financial officer of each Borrower either confirming that there the BORROWER, in the form of EXHIBIT B attached hereto, certifying to such officer’s knowledge whether a DEFAULT or EVENT OF DEFAULT has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date occurred and, if a DEFAULT or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)EVENT OF DEFAULT has occurred, specifying the trade creditor details thereof and balance due, and a detailed trade payable aging;
(j) promptly after the sending any action taken or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required proposed to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request taken with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsthereto.
Appears in 2 contracts
Samples: Uncommitted and Revolving Credit Line Agreement (SITIME Corp), Uncommitted and Revolving Credit Line Agreement (SITIME Corp)
Financial and Other Information. Keep adequate records and books of account with respect Deliver to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLender:
(a) as soon as available, available but in any event not no later than (i) 90 50 days after the close end of each Fiscal Yearof its first three fiscal quarters in each fiscal year, the unaudited consolidated and consolidating balance sheet of the Borrowers Borrower and their its Subsidiaries as at the end of such Fiscal Yearfiscal quarter, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial unaudited statements of the Borrowers and their Subsidiaries are provided to any other Personoperations, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s stockholders equity and cash flows of the Borrowers Borrower and their its Subsidiaries for such Fiscal Yearfiscal quarter and that portion of the fiscal year through the end of such quarter, which consolidated and setting forth in each case in comparative form the figures from the budget for such fiscal year most recently furnished to Lender pursuant to Section 6.02 and the actual figures for the corresponding date or period in the previous year. Such financial statements shall be audited and certified (without qualification as to scopeprepared in accordance with Generally Accepted Accounting Principles, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to complete and correct, shall fairly present the Agents)financial condition and results of operations of Borrower and its Subsidiaries at the dates and for the periods presented, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.be so certified by a Responsible Officer of Borrower; and
(b) as soon as available, available but in any event not no later than 45 95 days after the end of each Fiscal Quarter of each Fiscal Year its fiscal years, a complete copy of an audit report of Borrower and its Subsidiaries which shall include at least the consolidated and consolidating balance sheet of Borrower and its Subsidiaries as of the Borrowers (includingclose of such year, without limitationand the related statements of operations, stockholders equity and cash flows for the fourth Fiscal Quarter of year then ended, setting forth in each Fiscal Year of case in comparative form the Borrowers for which the deadline shall be 75 days), unaudited balance sheets figures as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as previous year. Such financial statements shall be prepared in accordance with GAAP (other than with respect to such same store sales performance metrics)Generally Accepted Accounting Principles, and shall fairly presenting present the financial position and results of operations for such Fiscal Quarter of Borrower and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that its Subsidiaries at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month dates and for the periods presented, and shall be certified by KPMG Peat Marwick, or other independent public accounting firm of recognized national standing selected by Borrower and satisfactory to Lender. Such certificate shall not be qualified or limited because of restricted or limited examination by such accountant of any material portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, Borrower's records or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by or contain any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, exceptions with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, possible errors generated by financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreporting.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Livewire Corp), Credit Agreement (Liberty Media Corp /De/)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP consolidating bases for (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(gi) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a CohnReznick LLP or another firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as availableAgent, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year and a copy of the Borrowers annual report on Form 10-K if any Obligor is a reporting entity and (including, without limitation, the fourth Fiscal Quarter ii) of each Fiscal Year of the Borrowers for Universal which the deadline consolidated statements shall be 75 days), unaudited balance sheets as audited and certified (without qualification) by Sxxxx & Wxxxxxxxxx LLP or another firm of the end chartered accountants of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the recognized standing selected by Borrowers and their Subsidiariesacceptable to Agent, setting and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant other information acceptable to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formAgent;
(cb) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterQuarter and within 90 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, (i) on a consolidated basis and consolidating bases for the Borrowers and their SubsidiariesSubsidiaries (which consolidating statements shall be prepared by Borrowers), setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes, and a copy of the quarterly report on Form 10-Q if any Obligor is a reporting entity; and (ii) on consolidated and consolidating bases for Universal, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and above (cin the case of clause (b) above and (ii) at when no Reporting Trigger Period is in effect, only for the end of last month in each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedFiscal Quarter), or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 60 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal YearsYears of Borrowers, year by year, and for such in which the first Fiscal Year, Year shall be on a month by month monthly basis and the next two Fiscal Years shall be on an annual basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hf) concurrently within 20 days after the end of each month, each Obligor shall provide Agent with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) a detailed trade payable aging, as of the end of the prior month and at any Agent’s request, a listing of each Loan Partysuch Obligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, all in form reasonably satisfactory to Agent, and (ii) a detailed trade payable aginglisting of Inventory by location, including details of any inventory in-transit to such Obligor, as of the end of the prior month, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.and
Appears in 2 contracts
Samples: Loan and Security Agreement (P&f Industries Inc), Loan and Security Agreement (P&f Industries Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoingconsolidating bases for Holdings, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, Borrower and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 (i) within 30 days after the end of each Fiscal Quarter (but within 45 days after the last Fiscal Quarter in a Fiscal Year) and (ii) at all times during a Dominion Period, within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter or month and the related statements of income and cash flows and same store sales performance metrics flow for such month or Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Holdings, Borrower and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer or Treasurer of the Borrowers Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with the delivery of the financial statements as of the end of each month under clause (b) above, a reconciliation of Eligible Inventory and Eligible Accounts from the Borrowing Base then in effect to the general ledger or other source document to such financial statements;
(d) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer or Treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Borrower;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 45 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrower’s consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s reasonable request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereoffiled in connection with each Plan; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Loan and Security Agreement (Ak Steel Holding Corp), Loan and Security Agreement (Ak Steel Holding Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoingconsolidating bases for Holdings, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, Borrower and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 (i) within 30 days after the end of each Fiscal Quarter (but within 45 days after the last Fiscal Quarter in a Fiscal Year) and (ii) at all times during a Dominion Period, within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter or month and the related statements of income and cash flows and same store sales performance metrics flow for such month or Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Holdings, Borrower and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer or Treasurer of the Borrowers Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month or Fiscal Quarter, as applicable, and period, subject to normal year-end adjustmentsyear‑end adjustments and the absence of footnotes;
(ic) concurrently with the delivery of the financial statements as of the end of each month under clause (b) above, a reconciliation of Eligible Inventory and Eligible Accounts from the Aggregate Borrowing Base then in effect to the general ledger or other source document to such financial statements;
(d) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer or Treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Borrower;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of Borrower and/or any Loan Party Borrowing Base Guarantor by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 45 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrower’s consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s reasonable request, a listing of Borrower’s and each Loan PartyBorrowing Base Guarantor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Borrower or any Loan Party Borrowing Base Guarantor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Borrower or any Loan Party Borrowing Base Guarantor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower or any Borrowing Base Guarantor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (Borrower or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthBorrowing Base Guarantor;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereoffiled in connection with each Plan; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a)Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 10.1.2 may be satisfied by furnishing Borrower’s (or (jany direct or indirect parent thereof, as applicable) (to the extent any such documents are included in materials otherwise Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents Commission or any Lender that requests such Borrower successor thereto to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Loan and Security Agreement (Ak Steel Holding Corp), Loan and Security Agreement (Ak Steel Holding Corp)
Financial and Other Information. Keep Keep, and cause each Subsidiary to keep, adequate records and books of account with respect to its business activities, in which proper entries entries, which, for Borrowers and Domestic Subsidiaries, are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidated basis for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of with each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related financial statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(gdelivered under clauses (a) and certified (b) above, internally prepared consolidating statements by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsbusiness segment;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 60 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ and Subsidiaries’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) at Agent’s request, promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each Plan or other modifications thereofForeign Plan; and
(rj) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Loan and Security Agreement (Cooper Tire & Rubber Co), Loan and Security Agreement (Cooper Tire & Rubber Co)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet copies of the Borrowers annual filings of Parent and their its Subsidiaries required to be filed with the Securities Exchange Commission, together with the balance sheets as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoingconsolidating bases for Parent, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to Agent. Simultaneously with retaining accountants for their annual audit, Borrowers shall send a letter to the Agentsaccountants, with a copy to Agent, notifying the accountants that one of the primary purposes for retaining their services and obtaining audited financial statements is for use by Agent and Lenders. Agent is authorized to send such notice if Borrowers fail to do so for any reason.
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year fiscal quarter, copies of the Borrowers (includingquarterly filings of Parent and its Subsidiaries required to be filed with the Securities Exchange Commission, without limitation, together with the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Parent, Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodquarter, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 45 days prior to after the beginning of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent and its consolidated Subsidiaries including projections of Parent’s consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month quarter by month basisquarter, all in form reasonably acceptable to Agent and with such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinline items as Agent may reasonably request;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Obligor’s, Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Loan and Security Agreement (Hypercom Corp), Loan and Security Agreement (Hypercom Corp)
Financial and Other Information. Keep adequate records and Except as otherwise expressly provided for in this Agreement, Borrower shall keep proper books of record and account with respect to its business activities, in which proper full and true entries are will be made of all dealings and transactions of or in relation to the business and affairs of Borrower, in accordance with GAAP reflecting all financial transactions; generally accepted accounting principles consistently applied, and furnish Borrower shall cause to be furnished to U.S. Bank, from time to time and in a form acceptable to U.S. Bank, such information as U.S. Bank may reasonably request, including without limitation, the Agents and the Lendersfollowing:
(a) as soon as available, but practicable and in any event not later than within ninety (90) days after the end of each fiscal year of Borrower, (i) 90 days after the close audited consolidated statements of income, retained earnings and cash flow of Borrower for each Fiscal Yearyear, the unaudited and a consolidated balance sheet of the Borrowers and their Subsidiaries Borrower for such year, setting forth in each case, in comparative form, corresponding figures as at of the end of the preceding fiscal year, all in reasonable detail and satisfactory in scope to U.S. Bank and certified to Borrower by such Fiscal Yearindependent public accountants as are selected by Borrower and satisfactory to U.S. Bank, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements whose opinion shall be in reasonable detail andscope and substance satisfactory to U.S. Bank, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (yii) the date on which the audited financial statements a compliance certificate of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet chief financial officer of Borrower in substantially the Borrowers and their Subsidiaries form attached as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified Exhibit 7A (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the AgentsCompliance Certificate”), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.;
(b) as soon as available, but practicable and in any event not later than 45 within forty five (45) days after the end of each Fiscal Quarter quarterly accounting period in each fiscal year of each Fiscal Year Borrower: (i) consolidated financial statements in the 10-Q form as presented to the Securities and Exchange Commission, and certified as accurate by the chief financial officer of Borrower, and (ii) a Compliance Certificate, with the fiscal year end Compliance Certificate to be considered “preliminary” and subject to change with the results of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the fiscal year end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formaudit;
(c) as soon as available, but practicable and in any event not later than 30 days after the end of each month within forty five (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1545) days after the end of each calendar month monthly accounting period in each Fiscal Year fiscal year of the Borrowers, a certification by a Senior Officer Borrower: consolidated statements of each Borrower, in form income and substance reasonably satisfactory to the Agents, (i) that all rent payments retained earnings of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist Borrower for such monthly period, (iii) as to the amount and a consolidated balance sheet of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries Borrower as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request thereformonthly period, all information pertaining to in reasonable detail and certified as accurate by the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions chief financial officer of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofBorrower; and
(r) such other reports and information (financial or otherwised) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to above, soon as practicable and in any event shall have no responsibility to monitor compliance by not later than thirty (30) days prior the Borrowers with any such request end of each fiscal year, an annual budget for delivery, and each Lender shall be solely responsible Borrower for requesting delivery to it or maintaining its copies of such documentsthe following fiscal year.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Inventure Foods, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenderseach Lender:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited (i) consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion Year of Parent and analysis in connection with the foregoingits Subsidiaries, which consolidated statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotesGAAP, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier balance sheets as of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s cash flow and shareholders’ equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearYear of the Xxxxx business on a standalone basis, which consolidated financial statements shall be prepared in accordance with GAAP, in each case, audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower Representative and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Required Lenders, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to filed with the Agents.Securities and Exchange Commission, and the consolidating balance sheets as of the end of such Fiscal Year and related statements of income for such Fiscal Year of Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and Foreign Subsidiaries;
(b) as soon as available, but (i) and in any event not later than within 45 days after the end of each Fiscal Quarter the following: (A) (x) unaudited consolidated balance sheets as of each the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year of then elapsed, for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the Borrowers preceding Fiscal Year, and (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), y) unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, for the Xxxxx business on a consolidated basis standalone basis, setting forth in comparative form corresponding figures for the Borrowers preceding Fiscal Year, and their (B) consolidating balance sheets as of the end of such Fiscal Quarter and the related statements of income for such portion of the Fiscal Year then elapsed for Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and Foreign Subsidiaries (provided, that for the purposes of this clause (B) only, in the case of each Fiscal Quarter that corresponds with the end of a Fiscal Year, such delivery shall be made within 90 days after the end of such Fiscal Quarter), (ii) and in any event within 30 days after the end of each Fiscal Month (A) unaudited consolidated balance sheets as of the end of such Fiscal Month and a related consolidated profit and loss statement and cash flow statement for such Fiscal Month and for the portion of the Fiscal Year then elapsed, for Parent and its Subsidiaries (excluding discontinued operations), setting forth in comparative form corresponding figures for the preceding Fiscal Year, and (B) unaudited balance sheets as of the end of such Fiscal Month and a related profit and loss statement and cash flow statement for such Fiscal Month and for the portion of the Fiscal Year then elapsed, for the Xxxxx business on a standalone basis (excluding discontinued operations), setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g(iii) and in any event within 45 days after the end of each Fiscal Quarter (but within 90 days after the last Fiscal Quarter in a Fiscal Year) a report setting forth a copy of Parent’s Management Discussion and Analysis for such Fiscal Quarter, and, in each case of clauses (i), (ii) and (iii), certified by a Senior Officer either the Chief Financial Officer, Vice President, Finance or Controller of the Borrowers Borrower Representative as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter or Fiscal Month, as applicable, and period, subject to normal year-year end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Collateral Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the Chief Financial Officer, Vice President, Finance or Controller of each the Borrower Representative;
(d) to the extent available and upon Lenders’ request, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such certification financial statements, including any such management letters and material reports with respect to be in such Person’s capacity as the Xxxxx business on a Senior Officer of such Borrower and not in such Person’s individual capacity)standalone basis;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties(i) Borrowers’ consolidated balance sheets, results of operations, operations and cash flow, budgets (ii) the Xxxxx business’ balance sheets, results of operations and availability under the credit facilities (includingcash flow on a standalone basis, without limitationin each case, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, quarter by quarter, in form and substance reasonably satisfactory to the Collateral Agent, which projections shall be prepared on a month reasonable basis and in good faith, and based on assumptions believed by month basis, such draft projections the Borrowers to be made in good faith based on reasonable assumptions of the Borrowers at the time mademade based on the circumstances known at such time; it being recognized by the Lenders that any projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinprojected results and such differences may be material;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Collateral Agent’s request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable agingall in form satisfactory to Collateral Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers each statement or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents report required to be delivered pursuant to Sections 10.1.2(a), this clause (bg) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower Representative posts such documents, or provides a link thereto document on such Borrowerthe Borrower Representative’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; xxx.xxxxxxxx.xxx, or (ii) on which when such documents are document is posted on such Borrowerthe Securities and Exchange Commission’s behalf website at xxx.xxx.xxx (the “SEC Website”) or on an Internet website established by the Lenders with Intralinks, Inc. or intranet website, if any, to which other similarly available electronic media (each Lender and of the Agents have access (whether a commercial, third-party website or whether sponsored by any Agentforegoing an “Informational Website”); provided that: provided, further, that (i) such the Borrower Representative shall deliver paper copies of all such documents to the Agents or any Lender that requests such the Borrower Representative to deliver such paper copies (without impairment of the effectiveness of any document previously delivered in electronic media form) until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (shall be notified by telecopier or electronic mail) mail of the applicable Informational Website and of the posting of any each such documents document; it being understood and provide to the Agents and the Lenders by electronic mail electronic versions agreed that (i.e., soft copiesx) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Collateral Agent shall have any no obligation to request the delivery or to maintain copies of the documents referred to aboveabove in this clause (e), and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower Representative with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsdocuments and (y) Borrowers shall be responsible for (other than with respect to the SEC Website) and shall incur all risks associated with (including with respect to the SEC Website) the security and confidentiality of the Informational Websites and its information posted thereon;
(h) not later than 15 days after the Collateral Agent’s request, such information regarding actions undertaken and/or completed to ensure that the Xxxxx business is working towards reporting its financial performance on a standalone basis such that it could be marketed and sold on a standalone basis; and
(i) such other reports and information (financial or otherwise) as any Lender may reasonably request from time to time in connection with any Collateral or any Obligor’s financial condition or business.
Appears in 2 contracts
Samples: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year (other than the Fiscal Year ended December 31, 2010, in which case within 120 days), a copy of the annual audit report of Parent and its Subsidiaries for such Fiscal Year, the unaudited including therein consolidated and consolidating balance sheet sheets of the Borrowers Parent and their its Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement and consolidating statements of income, shareholder’s equityearnings, cash flows and same store sales performance metrics retained earnings of the Borrowers Parent and their its Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metricseach case, prepared in accordance with GAAP (except for the absence of footnotesGAAP, normal recording year-end adjustmentsconsistently applied, certified without adverse reference to going concern value and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants auditors of recognized standing selected by the Borrowers Parent and reasonably acceptable to the Agents Agent, together with (it being acknowledged that KPMG LLP shall be acceptable x) a written statement from such accountants to the Agentseffect that in making the examination necessary for the signing of such annual audit report by such accountants, nothing came to their attention that caused them to believe that Loan Parties were not in compliance with any provision of Sections 10.2.1 (Debt), 10.2.4 (Mergers, Consolidations, Sales and shall set forth Other Transactions Outside the Ordinary Course of Business) or 10.3 (Financial Covenants) of this Agreement insofar as such provision relates to accounting matters or, if something has come to their attention that caused them to believe that Loan Parties were not in comparative form corresponding figures compliance with any such provision, describing such noncompliance in reasonable detail and (y) a comparison with the budget for the preceding such Fiscal Year and a comparison with the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agentsprevious Fiscal Year.
(b) as soon as available, but and in any event not later than 45 within 30 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)month, unaudited consolidated and consolidating balance sheets of Parent and its Subsidiaries as of at the end of such Fiscal Quarter month and the related unaudited consolidated and consolidating statements of income and earnings, cash flows and same store sales performance metrics retained earnings for such Fiscal Quarter and month and, in each case, for the portion periods beginning with the first day of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding such Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) relevant Fiscal Quarter and certified by a Senior Officer ending on the last day of the Borrowers as such month, in each case, prepared in accordance with GAAP (other than with respect to such same store sales performance metricsthe absence of footnotes and subject to year-end adjustments), consistently applied, and certified by the Chief Financial Officer as fairly presenting the financial position condition of Parent and results its Subsidiaries as at the date and for the periods covered, together with a comparison with the corresponding period of operations the previous Fiscal Year and a comparison with the budget for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end period of the second Fiscal Quarter of each current Fiscal Year, a management’s discussion and analysis in connection with certified by the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;Chief Financial Officer.
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, (i) a Compliance Certificate executed by a Senior Officer of each Borrower (the Chief Financial Officer, with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) aboveappropriate insertions, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since dated the date of the Schedules delivered on the Third Amendment Effective Date such annual report or the date of the most recent Schedules delivered such monthly statements, containing, among other things, if required pursuant to this Section and/or identifying such changes;
(g) from time to time upon request the terms hereof, a computation of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
financial ratios and restrictions set forth in Section 10.3 (hFinancial Covenants) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing and to the effect that such officer has not become aware of any new stores, offices Default or places Event of business Default that has occurred and is continuing which has not previously been disclosed to Agent in writing (including a description of the Loan Parties since event and the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, steps to be taken with respect to the Xxxxxxx Debt)thereto) or, specifying the trade creditor and balance dueif there is any such event, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month describing it and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet websitesteps, if any, taken or being taken to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender cure it and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) a written statement of Parent’s management setting forth a discussion of the posting financial condition of any such documents Parent and provide to the Agents and the Lenders by electronic mail electronic versions (i.e.its Subsidiaries, soft copies) changes in financial condition and/or results of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.operations;
Appears in 2 contracts
Samples: Loan, Security and Guaranty Agreement (Transport America, Inc.), Loan, Security and Guaranty Agreement (Transport America, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and Each Borrower shall promptly furnish to the Agents Bank or its agents all such financial information as the Bank shall reasonably request, and notify its auditors and accountants that the LendersBank is authorized to obtain such information directly from them. Without limiting the foregoing, each Borrower and its Subsidiaries will furnish to the Bank, in such detail as the Bank shall request, the following:
(a) as As soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, consolidated audited balance sheets, and statements of income and expanse, and cash flow statements for the unaudited Borrowers and their consolidated balance sheet Subsidiaries for such Fiscal Year, and the accompanying notes thereto, setting forth in each case in comparative form figures for the previous Fiscal Year, all in reasonable detail, fairly presenting the financial position and the results of operations of the Borrowers and their consolidated Subsidiaries as at the date thereof and for the Fiscal Year then ended, and prepared in accordance with GAAP. Such statements shall be examined in accordance with generally accepted auditing standards and accompanied by a report thereon unqualified as to scope by independent certified public accountants selected by the Parent and reasonably satisfactory to the Bank.
(b) As soon as available, but in any event not later than 30 days after the end of each month, consolidated unaudited balance sheets of the Borrowers and their consolidated Subsidiaries as at the end of such Fiscal Yearmonth, and consolidated unaudited statements of income and expenses and cash flow statements for the related Borrowers and their consolidated statement Subsidiaries for such month and for the period from the beginning of incomethe Fiscal Year to the end of such month, shareholder’s equityall in reasonable detail, cash flows fairly presenting the financial position and same store sales performance metrics results of operations of the Borrowers and their consolidated Subsidiaries as at the date thereof and for such Fiscal Yearperiods, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared prepaid in accordance with GAAP (except for consistent with the absence audited Financial Statements required pursuant to Section 8.2(a). Such statements shall be certified to be correct by the chief financial or accounting officer of footnotesthe Parent, subject to normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in .
(c) With each case shall set forth in comparative form corresponding figures for of the preceding Fiscal Year, the most recent projections provided audited Financial Statements delivered pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements 8.2(a), a certificate of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable that examined such statements to the Agents (it being acknowledged effect that KPMG LLP shall be acceptable to they have reviewed and are familiar with the Agents)Loan Documents and that, and shall set forth in comparative form corresponding figures examining such Financial Statements, they did not become aware of any fact or condition which then constituted a Default or Event of Default, except for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agentsthose, if any, described in reasonable detail in such certificate.
(bd) as As soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter fiscal quarter, a certificate of each Fiscal Year the chief executive or chief financial officer of the Parent (i) setting forth in reasonable detail the calculations required to establish that the Borrowers were in compliance with its covenants set forth in Sections 10.19 through 10.22 during the preceding fiscal quarter, and (ii) stating that, except as explained in reasonable detail in such certificate, (A) all of the representations and warranties of the Borrowers contained in this Agreement and the other Loan Documents are correct and complete as at the date of such certificate as if made at such time, and (including, without limitation, B) no Default or Event of Default then exists or existed during the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets immediately preceding fiscal quarter and as of the end date of such Fiscal Quarter certificate. If such certificate discloses that a representation or warranty is not correct or complete, or that a covenant has not been complied with, or that a Default or Event of Default existed or exists, such certificate shall set forth what action the Borrowers have taken or propose to take with respect thereto.
(e) Promptly after their preparation, copies of any and all proxy statements, financial statements, and reports which any Borrower makes available to its stockholders.
(f) Promptly after filing with the related statements PBGC, DOL, or IRS, a copy of income each annual report or other filing or notice filed with respect to each Plan of any Borrower or any ERISA Affiliate.
(g) Promptly, and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion in any event within 30 days of the Fiscal Year then elapsedreceipt thereof, on a consolidated basis for copies of any management letter received from the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for independent certified accountants retained by each Borrower.
(h) At any time that the preceding Fiscal Year and Bank has limited the most recent projections provided maximum amount of Borrowings pursuant to Section 10.1.2(g) 2.1(b), each Borrower will provide the Bank with "borrowing base" certificates and certified by a Senior Officer other reports and information concerning such Borrower's Accounts and Inventory, in such form and detail, and at such frequency, as the Bank shall require, including without limitation schedules of credit memos and reports, schedules of collections of Account, schedules of remittance advices, agings of Accounts and accounts payable and reports of Inventory balances. If any Borrower's records or reports of the Borrowers as Collateral are prepared in accordance with GAAP (by an accounting service or other than with respect agent, such Borrower hereby authorizes such service or agent to deliver such same store sales performance metrics)records, reports, and fairly presenting related documents to the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;Bank.
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at Such additional information as the end of each monthly period for which Bank may from time to time reasonably request regarding the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies business affairs of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party Borrower or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, future operations on both a consolidated and for such Fiscal Year, on a month by month consolidating basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Loan and Security Agreement (Outlook Group Corp), Loan and Security Agreement (Outlook Group Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and furnish cause to be prepared and furnished to Agent and Lenders the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Obligors’ certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders:, the financial covenants set forth in Section 10.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(ai) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited Year audited balance sheets of Parent and its consolidated balance sheet of the Borrowers and their Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s shareholders’ equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearflow, which consolidated financial statements shall be audited and on a Consolidated basis, certified (without qualification as to scope, “going concern” or similar items) an Impermissible Qualification by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and Obligors but reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), Agent and shall set setting forth in each case in comparative form the corresponding Consolidated and consolidating (by business unit) figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(bii) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of month hereafter, including the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter last month of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets of Parent and its consolidated Subsidiaries as of the end of such month and the related unaudited statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the such Fiscal Year then elapsed, on a consolidated basis for the Borrowers Consolidated and their Subsidiariesconsolidating (by business unit) basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the principal financial officer of the Borrowers Obligors as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting presenting, in all material respects, the Consolidated financial position and results of operations of Obligors and their Subsidiaries for such month and period, period subject only to normal changes from audit and year-end adjustmentsadjustments and except that such statements need not contain notes;
(iiii) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at not later than 15 days after the end of each monthly period for month during which the financial covenant pursuant to Section 10.2.27 is required to be testedAverage Availability was less than $15,000,000, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places all of business of the Loan Parties since the delivery each Obligor’s trade payables as of the last Business Day of such report;
(i) month, specifying the name of and balance due each trade creditor, and, at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a monthly detailed trade payable agingagings in form acceptable to Agent;
(jiv) except to the extent publicly available, promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that which any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that which any Loan Party Obligor files with the Securities and Exchange Commission SEC or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request thereforAgent’s request, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereoffiled in accordance with ERISA in connection with each Plan; and
(rvi) such other reports data and information (financial or otherwise) as any Agent may request Agent, from time to time in connection with any time, may reasonably request, bearing upon or related to the Collateral or any Loan PartyObligor’s or the Subsidiary’s financial condition or businessresults of operations. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed Concurrently with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on delivery of the date financial statements described in clause (i) on which of this Section 10.1.3, Obligors shall deliver to Agent a copy of any accountants’ letter to Obligors’ management that is prepared in connection with such financial statements and also shall cause to be prepared and shall deliver to Agent a certificate of the applicable Borrower posts aforesaid certified public accountants stating to Agent and Lenders that, based upon such documentsaccountants’ audit of the Consolidated financial statements of Obligors and their Subsidiaries performed in connection with their examination of said financial statements, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated nothing came to their attention that caused them to believe that Obligors were not in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet websitecompliance with Section 10.3, or, if anythey are aware of such noncompliance, to which each Lender and specifying the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: nature thereof. Concurrently with the delivery of the financial statements described in clauses (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower of this Section 10.1.3, or more frequently if requested by Agent during any period that a Default or Event of Default exists, Obligors shall notify the Agents cause to be prepared and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide furnished to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Agent a Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Certificate executed by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies chief financial officer of such documentsParent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Enpro Industries, Inc), Loan and Security Agreement (Enpro Industries, Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP (or, as the context may require, IFRS as it relates to the books and records of the UK Obligors) reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating and business division basis for the absence of footnotes, normal recording year-end adjustments, Obligors and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Obligors and acceptable to the Agents (it being acknowledged that KPMG LLP Agent, shall be acceptable to the Agents), prepared in accordance with GAAP and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and as against the most recent projections provided pursuant delivered to Section 10.1.2(g) the Agent and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated and consolidating and business division basis for the Borrowers Obligors and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and as against the most recent projections provided pursuant delivered to Section 10.1.2(g) the Agent and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsyearend adjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, (i) a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower Parent and (with such certification ii) the information required to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)delivered under Section 8.11.5;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesObligors’ consolidated consolidated, and business division balance sheets, results of operations, cash flowflow and ABL Availability, budgets ABL US Availability, ABL UK Availability and availability under the credit facilities (includingprojected ABL UK Borrowing Base, without limitationABL US Borrowing Base, projections of Revolver Excess Availability) UK Borrowing Base and US Borrowing Base, for that Fiscal Year, month by month and for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(hf) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of promptly following the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, accounts receivable aging and inventory aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor;
(kh) compliance certificates (promptly after Agent’s request, copies of any annual report to be filed in connection with each Pension Plan or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthForeign Plan;
(i) promptly upon request of any Agentfollowing receipt, furnish to the Agents a copy of any material notice from the most recent actuarial statement required Pensions Regulator in which it proposes to be submitted under §103(d) take action which may result in the issuance of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 a Contribution Notice or other similar document with all required attachments, Financial Support Direction in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereofpension plan;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as the Obligors may from time to time provided to the ABL Agent under the ABL Loan Documents in connection with any Collateral or any Obligor’s, Subsidiary’s or other Obligor’s financial condition or business; and
(k) promptly following the Agent’s request, such other material reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Loan PartyObligor’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 2 contracts
Samples: Term Loan, Guaranty and Security Agreement, Term Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
: (a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Obligors and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Obligors and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
Agent; (b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingQuarter, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Obligors and their Subsidiaries, setting which statements shall be reviewed by a firm of independent certified public accountants of recognized standing selected by Obligors and acceptable to Agent and set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter quarter and period, subject to normal year-year end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
footnotes; (c) as soon as available, but and in any event not later than within 30 days after the end of each month Fiscal Month (including, without limitation, and 45 days for the third month of last Fiscal Month in each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Obligors and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-year end adjustments;
adjustments and the absence of footnotes; (id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of the chief financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.-57-
Appears in 1 contract
Samples: Loan Agreement (Key Tronic Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not no later than (i) May 31, 2019 for the Fiscal Year ending December 31, 2018 and within 90 days after the close of each Fiscal YearYear thereafter, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, Obligors and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification (or similar notation) as to scope, “scope or going concern” or similar itemsconcern (it being understood that any qualification with respect to the stated maturity date of the Revolver Loans is permissible)) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Obligors and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Obligors and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning commencement of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesObligors’ consolidated balance sheets, results of operations, cash flowflow and Availability for such Fiscal Year, budgets month by month , and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three (3) Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business;
(j) as soon as available, and in any event within 120 days after the close of each Fiscal Year, financial statements for each Guarantor, in form and substance reasonably satisfactory to Agent; and
(k) promptly following any request therefor, provide 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, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation. Documents Information required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) Section 10.1.2 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, information or provides a link thereto on such Borrower’s website on the Internet internet at the website address indicated in writing to the Agents xxxx://xxx.xxxxxxxx.xxx or at xxxx://xxx.xxx.xxx and the promptly notifies Agent and Lenders by the Borrower Agent; of such posting or (ii) on which such documents are information is posted on such the Borrower’s behalf on an any Internet or intranet website, if any, to which each Lender the Lenders and the Agents Agent have been granted access and have been promptly notified of such posting (whether a commercial, third-third party website or whether sponsored by any the Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan, Guaranty and Security Agreement (ArcLight Clean Transition Corp.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and The Loan Parties will furnish to the Agents and the LendersAgent:
(a) as soon as available, but available and in any event on or before the date on which such financial statements are required to be filed with the SEC (or, if such financial statements are not later than required to be filed with the SEC, on or before the date that is 105 days after the end of each such fiscal year), (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers MRC Global and their its Subsidiaries as at the end of such Fiscal Yearfiscal year, and the related consolidated statement of income, shareholder’s equity, operations and consolidated statement of cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Yearfiscal year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set setting forth in comparative form corresponding consolidated figures for the preceding Fiscal Yearfiscal year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable certified by independent certified public accountants of recognized national standing whose opinion shall not be qualified as to the Agents scope of audit or as to the status of MRC Global or any of the Material Subsidiaries (or group of Subsidiaries that together would constitute a Material Subsidiary) as a going concern, together in any event with a certificate of such accounting firm stating that in the course of its regular audit of the business of MRC Global and the Material Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge of any Default or Event of Default that has occurred and is continuing or, if in the opinion of such accounting firm such a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof which shall be certified by a Senior Officer of MRC Global, and (ii) the earlier unaudited consolidating financial statements of MRC Global and its Subsidiaries containing a balance sheet as of the end of such fiscal year and a statement of operations for such fiscal year prepared in reasonable detail;
(xb) 120 days after the close of each Fiscal Year as soon as available and (y) in any event on or before the date on which the audited such financial statements are required to be filed with the SEC with respect to each of the Borrowers and their Subsidiaries first three quarterly accounting periods in each fiscal year of MRC Global (or, if such financial statements are provided not required to any other Personbe filed with the SEC, on or before the date that is sixty (60) days after the end of each such quarterly accounting period), the consolidated balance sheet of the Borrowers MRC Global and their Subsidiaries its Restricted Subsidiaries, in each case as at the end of such Fiscal Yearquarterly period and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and the related consolidated statement of income, shareholder’s equity and cash flows for the elapsed portion of the Borrowers and their Subsidiaries for fiscal year ended with the last day of such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)quarterly period, and shall set setting forth in comparative form corresponding consolidated figures for the preceding Fiscal Year and related periods in the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to prior fiscal year or, in the Agents.
(b) as soon as availablecase of such consolidated balance sheet, but in any event not later than 45 days after for the end of each Fiscal Quarter of each Fiscal Year last day of the Borrowers (includingprior fiscal year, without limitation, the fourth Fiscal Quarter all of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodMRC Global, subject to changes resulting from audit and normal year-end audit adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but available and in any event not later than 30 on or before the date that is thirty (30) days after the end of each fiscal month (including, without limitationof MRC Global, the third month consolidated balance sheet of MRC Global and its Restricted Subsidiaries, in each Fiscal Quarter), unaudited balance sheets case as of at the end of such fiscal month and the related statements consolidated statement of income and cash flows and same store sales performance metrics operations for such fiscal month and for the elapsed portion of the Fiscal Year then elapsedfiscal year ended with the last day of such fiscal month, on a and the related consolidated basis statement of cash flows for the Borrowers elapsed portion of the fiscal year ended with the last day of such fiscal month, and their Subsidiaries, setting forth in comparative form corresponding consolidated figures for the preceding Fiscal Year and related periods in the most recent projections provided pursuant to Section 10.1.2(g) and prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the prior fiscal year, all of which shall be certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and periodMRC Global, subject to changes resulting from audit and normal year-end audit adjustments;
(id) concurrently not more than sixty (60) days after the commencement of each fiscal year of MRC Global, a budget of MRC Global and its Restricted Subsidiaries in reasonable detail for such fiscal year on a quarterly basis and as customarily prepared by management of MRC Global for their internal use consistent in scope with the financial statements provided pursuant to Section 10.1.1(a), setting forth the material assumptions upon which such budgets are based;
(e) at the time of the delivery of the financial statements under clauses (a), (bprovided for in Sections 10.1.1(a) and (cb), a Compliance Certificate of a Senior Officer of MRC Global to the effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) above the Consolidated Fixed Charge Coverage Ratio (and (iiaccompanying calculations) as at the end of each monthly period for which such fiscal year or period, as the case may be, (ii) a specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be, (iii) the then applicable level of the Applicable Margin and (iv) the amount of any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in either case, in reasonable detail, the calculations and basis therefor. At the time of the delivery of the financial covenant pursuant to statements provided for in Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists10.1.1(a), a Compliance Certificate executed by certificate of a Senior Officer of each Borrower (with such certification Loan Party Agent setting forth certain information required pursuant to be in such Person’s capacity as a Senior Officer of such Borrower Sections 1 and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee 2 of the board of directors) of any Loan Party by independent accountants in connection with the accounts Perfection Certificate or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Closing Date or the date of the most recent Schedules certificate delivered pursuant to this Section and/or identifying such changessubsection (e), as the case may be;
(gf) from time to time upon request of any Agent, as soon as available but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities within twenty-five (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1525) days after of the end of each calendar month in each Fiscal Year of the Borrowersmonth, a certification Borrowing Base Certificate (which shall be calculated in a consistent manner with the most recently delivered Borrowing Base Certificate), delivered by a Senior Officer of MRC Global or the applicable Loan Party Agent, covering each BorrowerBorrower and supporting information in connection therewith, in form and substance reasonably satisfactory to the Agents, provided that (i) that all rent payments the Borrowers will be required to furnish a Borrowing Base Certificate and supporting information in connection therewith within four (4) days of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount end of outstanding consignment accounts payable for such each calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries week as of the end of such calendar monthweek during which a FCCR Test Event is continuing, (ii) the North American Loan Party Agent or a Senior Officer of MRC Global may deliver updates to the Foreign Allocated U.S. Availability component of any Foreign Borrower’s Borrowing Base (A) when no FCCR Test Event is continuing, once per calendar week and (B) at such other times as Agent may agree in its discretion and (iii) the Borrowers may not reallocate the Foreign Allocated U.S. Availability component of any Foreign Borrower’s Borrowing Base if such reallocation would result in an Overadvance for such Foreign Borrower;
(g) as soon as available but in any event within twenty-five (25) days of the end of each calendar month (or, if requested by Agent, on a weekly basis if a FCCR Test Event has occurred and is continuing), in each case, as of the period then ended:
(i) a schedule detailing the Borrowers’ Inventory, in form reasonably satisfactory to Agent, (1) by Borrower and by location (showing Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement, in each case, to the extent the Cost of Inventory at such location exceeds (A) $5,000,000 in the aggregate with respect to Canadian Borrowers and U.S. Borrowers and (B) $1,000,000 in the aggregate with respect to any other Borrower Group), (2) including a report of material variances or other results of Inventory counts performed by the Borrowers since the last Inventory schedule and (3) reconciled to the Borrowing Base Certificate delivered as of such date;
(ii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusion;
(iii) a schedule and aging of each Borrower’s and each Guarantor’s accounts payable presented at the vendor level; and
(iv) a detailed aged trial balance of all Accounts of each Borrower as of the end of the preceding month (or shorter applicable period), specifying each Account’s Account Debtor name and address (if requested), amount, invoice date and due date and, at the Agent’s reasonable request, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request.
(h) promptly after a Senior Officer of any Loan Party obtains knowledge thereof, notice of (i) the occurrence of any event that constitutes a Default or Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action the applicable Loan Party proposes to take with respect thereto and (ii) any litigation or governmental proceeding pending against MRC Global or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect or a Material Adverse Change;
(i) each Loan Party will promptly upon request advise the Agent in writing after obtaining knowledge of any Agent, furnish to the Agents a copy one or more of the most recent actuarial statement required to be submitted under §103(d) of ERISAfollowing environmental matters, other Applicable Pension Legislation and Annual Reportunless such environmental matters could not, Form 5500 individually or other similar document when aggregated with all required attachmentsother such matters, be reasonably expected to result in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;Material Adverse Effect:
(ni) promptly upon delivery thereof, copies of all documents and materials of a material financial nature Any pending or otherwise provided to any other creditor of any threatened Environmental Claim against such Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreementcurrent or former Real Estate;
(oii) promptly upon request therefor, all information pertaining Any condition or occurrence on or otherwise related to any current or former Real Estate that (A) could reasonably be expected to result in noncompliance by such Loan Party with any applicable Environmental Law or (B) could reasonably be anticipated to form the basis of an Environmental Claim against such Loan Parties and their Subsidiaries reasonably requested by Party or any Lender in order for such Lender to comply with the provisions of the Patriot Actcurrent or former Real Estate;
(piii) Any condition or occurrence on or otherwise related to any current or former Real Estate that could reasonably be anticipated to cause such Real Estate to be subject to any restrictions on the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Daysownership, at the request of Agentoccupancy, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented use or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing transferability of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and Real Estate under any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofEnvironmental Law; and
(riv) such other reports and information (financial The conduct of, or otherwise) as need to conduct, any Agent may request from time to time in connection with any Collateral investigation, or any Loan Party’s removal, remedial or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (other corrective action in response to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so deliveredactual or alleged presence, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, release or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting threatened release of any such documents and provide Hazardous Material on, at, under or from any current or former Real Estate or otherwise related to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsEnvironmental Law.
Appears in 1 contract
Samples: Loan, Security and Guarantee Agreement (MRC Global Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating basis for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of (but within 90 days after the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each in a Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated and consolidating basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter month and period, subject to normal year-year end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a an unconsolidated and if available, consolidated and consolidating basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than except that such same store sales performance metrics), monthly financial statements may not be consolidated) and fairly presenting the financial position and results of operations for such month and period, subject to normal year-quarterly and year end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such the next Fiscal Year, on a Fiscal Quarter by Fiscal Quarter (if practical month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth);
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating Borrower that could reasonably be expected to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, have a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthMaterial Adverse Effect;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature any annual report to be filed in connection with each Plan or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit AgreementForeign Plan;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), ; and
(bk) or (j) (to the extent any such documents are not included in materials otherwise filed with the Securities Chromcraft’s consolidated and Exchange Commission) may be delivered electronically and if so deliveredconsolidating financial statements, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to aboveas soon as available, and in any event within 120 days after the close of each Fiscal Year, financial statements for each Guarantor (if any), in form and substance satisfactory to Agent. Simultaneously with retaining accountants for their annual audit, Borrowers shall have no responsibility send a letter to monitor compliance the accountants, with a copy to Agent and Lenders, notifying the accountants that one of the primary purposes for retaining their services and obtaining audited financial statements is for use by the Agent and Lenders. Agent is authorized to send such notice if Borrowers with fail to do so for any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreason.
Appears in 1 contract
Samples: Loan and Security Agreement (Chromcraft Revington Inc)
Financial and Other Information. Keep adequate records The Company will furnish to each Noteholder (other than a Competitor) that, together with its Affiliates and books related investment funds, holds $1,000,000 or more in principal amount of account Notes one copy of each of the following:
(a) within 120 days after the end of each Fiscal Year, commencing with respect Fiscal Year 2004, (i) Consolidated balance sheets and Consolidated income statements showing the financial condition of the Company and its Subsidiaries as of the close of such Fiscal Year and the results of their operations during such year, and (ii) a Consolidated statement of members' equity and a Consolidated statement of cash flow, as of the close of such Fiscal Year, all the foregoing financial statements to be audited by a Big 4 or other independent certified public accountants reasonably acceptable to the Majority Holders, and to be in form and substance reasonably acceptable to the Noteholders;
(b) within 30 days after the end of each fiscal month unaudited Consolidated income statements of the Company and its business activitiesSubsidiaries and within 60 days after the end of each Fiscal Quarter unaudited Consolidated and consolidating balance sheets and Consolidated and consolidating income statements showing the financial condition and results of operations of the Company and its Subsidiaries as of the end of each such quarter, a Consolidated and consolidating statement of members' equity and a Consolidated and consolidating statement of cash flow as of the end of each such quarter, prepared and certified by an Approved Officer of the Company as presenting fairly in which proper entries are made all material respects the financial condition and results of operations of the Company and its Subsidiaries and as having been prepared in accordance with GAAP reflecting all financial transactions; consistently applied, setting forth in the case of each Consolidated statement in comparative form the corresponding figures for the corresponding quarter of the preceding year and furnish corresponding figures for the period beginning with the first day of the current Fiscal Year and ending on the last day of the relevant Fiscal Quarter and the corresponding period for the previous Fiscal Year, in each case subject to footnotes and normal year-end audit adjustments;
(i) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by the Company or any Subsidiary with the SEC pursuant to the Agents requirements of the Securities Act or the Exchange Act; (ii) as soon as practicable, copies of all material reports, forms, filings and financial information submitted by the Company or any Subsidiary to any other Governmental Authority and all material reports submitted to its interest holders; (iii) within 5 Business Days after receipt by the Company or any Subsidiary thereof, copies of any exception reports prepared by any Gaming Authority and (iv) within 5 Business Days of filing by the Company or any Subsidiary with any Gaming Authority, copies of any and all reports of borrowings on form 8.130 or its equivalent;
(d) concurrently with any delivery under (a) or (b) (solely in the case of quarterly deliveries) above, a certificate of the firm or Person referred to therein (which certificate furnished by the independent public accountants referred to in paragraph (a) above may be limited to accounting matters and disclaim responsibility for legal interpretations and shall be in a form to be reasonably agreed upon by the Company, such independent public accountants and the Lenders:Majority Holders) certifying that during their audit or preparation, as applicable, of such financial statements nothing has come to its, his or her attention that would result in an Event of Default (including recognizing (in the case of an audit performed by a Big 4 or other independent certified public accountants reasonably acceptable to the Majority Holders), provided, however, that the scope and purpose of their audit was not to determine compliance with the terms of the Notes Documents or whether an Event of Default has otherwise occurred); provided, however, that any certificate delivered concurrently with (a) above shall be accompanied by a supplemental certificate confirming the accuracy of the accountants' certificate and signed by an the Chief Executive Officer or the Chief Financial Officer of the Company or another Person duly authorized by the Company. The parties hereto agree that in the case of any delivery under (b) above, a certificate from the Chief Financial Officer or Chief Executive Officer of the Company shall satisfy the requirements of this paragraph (d) in connection with whether an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(e) concurrently with any delivery under (a) or (b) (solely in the case of quarterly deliveries) above, a management discussion and analysis certified by the Company describing any differences between the reported financial results under the financial statements delivered thereunder from the budget required by Section 6.4(h), which shall include, among any other information or explanation reasonably requested by the Majority Holders (i) the calculation of EBITDA for the Fiscal Quarter last ended and (ii) a list of any Capital Expenditures (including Renovation Capital Expenditures and Maintenance Capital Expenditures) made during such Fiscal Quarter and shall set forth in connection with any such Capital Expenditures made during such Fiscal Quarter, the amount and nature of any such expenditure with attached copies of any contracts entered into, invoices received and evidence of payment made with respect to any such expenditure together with mechanic's liens releases in connection with any payments made by the Company or any Subsidiary;
(f) concurrently with any delivery under (a) above, a management letter prepared by the independent public accountants who reported on the financial statements delivered under (a) above, with respect to the internal audit and financial controls of the Company and its Subsidiaries;
(g) any gaming reports generated by the Company or any of its Subsidiaries;
(h) as soon as available, but in any event not later than (i) 90 days after the close December 31 of each Fiscal Year, OpBiz's annual internal operating budget (which shall list with reasonable specificity OpBiz's good faith estimate of planned Renovation Capital Expenditures through the unaudited consolidated balance sheet of third Anniversary Date, Maintenance Capital Expenditures, and other Capital Expenditures) for the Borrowers and their Subsidiaries as at the end of such next Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows as soon as prepared and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, available any amendments thereof prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.ordinary course;
(bi) as soon as available, but in any event not later than 45 days after the end December 31 of each Fiscal Quarter of each Year, a Consolidated and consolidating plan and financial forecast for the next Fiscal Year and each subsequent Fiscal Year through the Maturity Date of the Borrowers Notes, including (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited i) forecasted Consolidated and consolidating balance sheets as of the end of such Fiscal Quarter and the related forecasted Consolidated and consolidating statements of income and cash flows of the Company and same store sales performance metrics its Subsidiaries for such Fiscal Quarter and for the portion Years, together with an explanation of the Fiscal Year then elapsed, assumptions on a consolidated basis for the Borrowers which such forecasts are based and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (ii) such other information and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after Years as the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formMajority Holders may reasonably request;
(cj) as soon as available, but in any event not later than 30 calendar days after following the end of each fiscal month, a monthly operating report for the month (includingthen ended which shall include items used by the Company and its Subsidiaries in measuring their operating and financial performance in the ordinary course which shall include, without limitation, the third month of each Fiscal Quarter)average daily room rate, unaudited balance sheets as of the end of such month food and beverage revenue per room, gaming revenue and the related statements other items set forth on Exhibit S or as may otherwise be prepared by the Company in the ordinary course of income its management and cash flows and same store sales performance metrics for financial reporting so long as any such month and for items are acceptable to the portion of the Fiscal Year then elapsedMajority Holders, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance together with GAAP (such other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if information reasonably requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan PartyMajority Holders;
(k) compliance certificates (or such other evidence promptly upon receipt thereof, copies of compliance) with the all material notices, reports, budgets, forecasts, proposals, studies, financial covenants statements and other terms of the Revolving Loan Documents (information provided by any Manager, any casino operator or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder)Leasing Manager;
(l) within fifteen (15) days after at the end request of the Majority Holders, a copy of each calendar month in annual report or other filing filed with respect to each Fiscal Year Plan of the Borrowers, Company or any ERISA Affiliate;
(m) a certification by a Senior Officer monthly report on the progress of each Borrower, the renovations in form and substance reasonably satisfactory to the AgentsMajority Holders, (i) that all rent payments which in any event shall include a narrative description of the Borrowers progress to date, a comparison between expenses incurred to date and their Subsidiaries have been madebudgeted expenses, (ii) that no lease defaults exist for such period, (iii) as a timeline illustrating the remaining steps to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basisbe taken to completion, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required projected expenses to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish incurred to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicablecompletion; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;and
(n) promptly upon delivery thereofsuch additional information as any Noteholder that, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply together with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement its Affiliates and related documents and any amendmentsinvestment funds, modificationsholds $1,000,000 or more in principal amount of Notes, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral reasonably request regarding the financial and business affairs, operations or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) prospects of the posting of any such documents Company and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsSubsidiaries.
Appears in 1 contract
Financial and Other Information. Keep adequate records Borrower shall maintain full and complete books of account with respect to its business activities, in which proper entries are made and other records reflecting the results of operations of the Project in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenders:
(a) as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates accepted accounting principles consistently applied (or such other evidence accounting method approved in writing by Lender). Borrower shall furnish or cause to be furnished to Lender such financial information concerning Borrower, the Principals and the Project as Lender may reasonably request from time to time. Lender shall also have access to such books and records and Borrower's corporate books, during regular business hours and upon reasonable advance notice to Borrower and shall have the right to make copies thereof or extracts therefrom and to discuss the affairs, finances and accounts of compliance) Borrower with Borrower and its independent public accountants, all as Lender may reasonably request. Without limiting the financial covenants and other terms generality of the Revolving Loan Documents foregoing, each year Borrower shall furnish to Lender, Without prior request or demand:
A. If Borrower and/or any Principal is not a natural person or a trust, within ninety (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1590) days after the end of each calendar month in each Fiscal Loan Year of the Borrowersand at such other times within thirty (30) days after request by Lender, Borrower shall provide Lender with annual financial statements (including, without limitation, a certification by balance sheet and a Senior Officer profit and loss statement) for such party's previous fiscal year and the current fiscal year-to-date, each of each Borrower, in form and substance reasonably satisfactory to the Agents, which shall (i) that all rent payments of the Borrowers and their Subsidiaries have been madebe in form reasonably acceptable to Lender, (ii) that no lease defaults exist contain comparative information for such periodthe two (2) previous fiscal years, (iii) be certified as to the amount of outstanding consignment accounts payable for true, correct and complete by Borrower or such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basisPrincipal, and (iv) describing at Lender's election after the long-term debt occurrence of the Borrowers and their Subsidiaries as an Event of Default or Potential Default, be certified by a certified public accountant acceptable to Lender.
B. If Borrower and/or any Principal is a natural person or trust, Borrower shall provide Lender with (i) annual financial statements, in form reasonably acceptable to Lender, for each such party within ninety (90) days after the end of each Loan Year and at such calendar month;other times within thirty (30) days after request by Lender, and (ii) copies of the tax returns for each such party, together with all supporting schedules, within thirty (30) days after the filing thereof. Such financial statements and tax returns shall be certified as true, correct and complete by Borrower or such Principals.
C. Within ninety (90) days after the end of each Loan Year and at such other times within thirty (30) days after request by Lender, Borrower shall provide Lender with annual operating statements for the Project for the previous fiscal year and the current fiscal year-to-date, which shall (i) promptly upon request of any Agent, furnish be in form reasonably acceptable to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian PlanLender, (ii) promptly upon receipt or dispatch, furnish to contain comparative information for the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislationtwo (2) previous fiscal years, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISAcertified as true, correct and complete by Borrower, and (iv) promptly deliver at Lender's election after the occurrence of an Event of Default or Potential Default, be certified by a certified public accountant acceptable to Lender.
D. Within ninety (9O) days after the Agents end of each Loan Year and at such other documents times within thirty (30) days after request by Lender, Borrower shall provide Lender with an updated rent roll for the Project, in form satisfactory to Lender and containing such information as is reasonably required by Lender.
E. Without limiting any of Lender's rights or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as remedies in the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies event of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested failure by any Lender in order for such Lender Borrower to comply with the provisions of the Patriot Act;
(p) this Section 7.8, if ----------- Borrower fails to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in deliver to Lender any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreementfinancial statements or other information required herein on or before the date required in this Section 7.8 ----------- (the "Information Delivery Date"), notify then commencing on the Agents information Delivery Date the Variable Rate Margin (as defined in writing of the Note) shall be increased by one-half percent (.50%) until such consignment arrangementtime as Borrower has delivered, specifying the consignorand Lender has approved, the consignee, the term all of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers financial statements or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered by Borrower pursuant to Sections 10.1.2(a)this Section 7.8. In addition to such ----------- increase in the Variable Rate Margin, the Monthly Installments (bas defined in the Note) or (j) (to the extent any such documents are included in materials otherwise filed shall be adjusted effective with the Securities Monthly Installment due immediately following the Information Delivery Date to reflect such increase. Once Borrower has delivered, and Exchange Commission) may Lender has approved, all of the financial statements and other information required to be delivered electronically and if so deliveredby Borrower pursuant to this Section 7.8, the Monthly ----------- Installments shall be deemed to have been delivered on readjusted effective with the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsMonthly Installment due immediately thereafter.
Appears in 1 contract
Samples: Loan and Security Agreement (Aspect Communications Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLender:
(a) as soon as available, but and in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) within 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements fiscal year, balance sheets as of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, fiscal year and the related consolidated statement statements of income, shareholder’s cash flow and shareholders’ equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearBorrower, which consolidated financial statements shall be audited and certified (without qualification as reviewed on standards satisfactory to scope, “going concern” or similar items) Lender by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Lender;
(b) as soon as available, but and in any event not later than 45 within thirty (30) days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)calendar month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year fiscal year then elapsed, on a consolidated basis for the Borrowers and their SubsidiariesBorrower, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) fiscal year and certified by a Senior Responsible Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereofsame become publicly available, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, all periodic and special reports or registration other reports, proxy statements or prospectuses that any Loan Party files and other materials filed by Borrower with the Securities and Exchange Commission or any other Governmental Authorityof the United States, or any governmental authority succeeding to any or all of the functions of said Commission, or with any national securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041Adistributed by Borrower to its shareholders generally, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate case may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofbe; and
(rd) such other reports and information (financial or otherwise) as any Agent Lender may reasonably request from time to time in connection with any Collateral or any Loan Party’s or the SubsidiaryBorrower’s financial condition or business. Documents The Borrower acknowledges that the foregoing financial information, the notices required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials by Section 8.1.2 below and otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents under this Agreement and the Lenders by the other Loan Documents may include Credit Parties’ material non-public information, and upon Lender’s written request Borrower Agent; or (ii) on which shall immediately cease delivery of such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, material non-public information to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsLender’s affiliates.
Appears in 1 contract
Samples: Loan Agreement (Audioeye Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLender:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with on a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidated basis for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, including any “going concern” or similar itemsassumption, qualification or exception or any assumption, qualification or exception as to scope of audit, except a going concern note arising solely from the impending maturity of the Loans) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Xxxxxx, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.reasonably requested by Xxxxxx;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income income, cash flow and cash flows and same store sales performance metrics shareholders equity for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as having been prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 60 days prior to following the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basismonth;
(f) as soon as available, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 within 20 days following after the beginning end of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestmonth, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Lender;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereofsame become publicly available, copies of all documents periodic and other reports, proxy statements and other materials of a material financial nature filed by any Borrower or otherwise provided any Subsidiary with the SEC, or any Governmental Authority succeeding to any other creditor or all of the functions of the SEC, or with any Loan Party national securities exchange, or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested distributed by any Lender in order for such Lender Borrower to comply with its shareholders generally, as the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofcase may be; and
(rj) such other reports and information (financial or otherwise) as any Agent Lender may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections Section 10.1.2(a), (b), (g) or (ji) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSEC) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website materials are publicly available as posted on the Internet at the website address indicated in writing to the Agents Electronic Data Gathering, Analysis and the Lenders by the Borrower AgentRetrieval system (XXXXX); or (ii) on which such documents are posted on such a Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have has access (whether a commercial, third-party website or whether sponsored made available by any AgentLender); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan and Security Agreement (HOOKER FURNISHINGS Corp)
Financial and Other Information. Keep adequate records The Administrative Agent shall have received a certificate in form and books of account with respect substance reasonably satisfactory to its business activitiesit, in which proper entries are made in accordance with GAAP reflecting all financial transactions; dated the Closing Date and furnish to the Agents and the Lenders:
(a) as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate duly executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of chief financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business officer and the chief executive officer of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, attaching the following documents and reports (each in form and substance reasonably satisfactory to the AgentsAdministrative Agent) and certifying that such documents and reports are true and complete in all material respects as of the Closing Date and that all forecasts and projections were prepared by the Loan Parties in good faith based upon reasonable assumptions at the time of delivery thereof (it being understood that forecasts and projections are subject to uncertainties and contingencies, many of which are beyond the Loan Parties’ control, and no assurance can be given that any forecast or projection will be realized and that actual results may differ and such differences may be material):
(i) that all rent payments of the Borrowers and their Subsidiaries have been made, Historical Financial Statements;
(ii) that no lease defaults exist the consolidated balance sheet, consolidated cash flow statement and related consolidated statement of income of the Borrower as of and for such periodthe twelve-month period ending on the last day of the most recently completed twelve-month period ended December 31, 2018;
(iii) as to forecasted financial projections for the amount of outstanding consignment accounts payable Borrower and its Subsidiaries for such calendar month and the book value determined in accordance with GAAP of Inventory held then upcoming fiscal year (on a consignment month-by-month basis) and each other fiscal year through the fiscal year ending December 31, and (iv) describing the long-term debt 2021, a projected consolidated balance sheet of the Borrowers Borrower and their its Subsidiaries as of the end of each such calendar month;
(i) promptly upon request fiscal year, the related consolidated statements of any Agentprojected cash flow and projected income, furnish to the Agents and a copy description of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachmentsunderlying assumptions applicable thereto, in respect each case prepared by management of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties in good faith based upon reasonable assumptions and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with setting forth the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in principal assumptions on which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofprojections are based; and
(riv) such other reports calculations in form and information (financial or otherwise) as any substance reasonably satisfactory to the Administrative Agent may request from time demonstrating to time in connection with any Collateral or any Loan Partythe Administrative Agent’s or reasonable satisfaction that, on the Subsidiary’s financial condition or business. Documents required Closing Date on a pro forma basis giving effect to the Term Loans to be delivered pursuant to Sections 10.1.2(a)made hereunder, (bA) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet Liquidity is at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender least $65,000,000 and (iiB) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, Total Appraisal Ratio is no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsless than 6.50:1.00.
Appears in 1 contract
Samples: Loan Agreement (Phi Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion for Borrowers and analysis in connection with the foregoingSubsidiaries, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent, together with such financial statements prepared using first-in, first-out method of inventory accounting as certified by the Agents.chief financial officer of Borrower Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited consolidated balance sheets as of the end of such Fiscal Quarter and the related consolidated statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to except for normal yearyear end adjustments and the absence of footnotes, together with such financial statements prepared using first-end adjustmentsin, along with, after first-out method of inventory accounting as certified by the end chief financial officer of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formBorrower Agent;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports, if any, submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, as soon as available and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or ;
(j) promptly after submission to any Governmental Authority, all material documents and information furnished to such Governmental Authority in connection with any investigation of any Borrower or any Subsidiary of a Borrower other than routine inquiries by such Governmental Authority and inquiries with respect to matters that would not have a Material Adverse Effect and except as prohibited by law; and
(to k) by November 30 of each year, an off-season reserve analysis for the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies remainder of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained hereinFiscal Year ending on March 31, in every instance the Borrowers shall be required form and detail consistent with past practices and satisfactory to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAgent.
Appears in 1 contract
Financial and Other Information. Keep adequate records (i) Clauses (a) and books (b) of account with respect Section 10.1.2 of the Loan Agreement are hereby amended and restated to its business activities, read in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenderstheir entirety as follows:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis (upon request by Agent) consolidating bases for Borrowers and Subsidiaries (together
(a) (to the extent such statements are included in connection materials otherwise filed with the foregoingSecurities and Exchange Commission) may be delivered electronically and, which statements if so delivered, shall be in reasonable detail and, other than with respect deemed to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) have been delivered on the date on which the audited financial statements of Borrowers post such documents on xxx.xxx.xxx, or provide a link thereto on the Borrowers’ website at xxx.xxxxxxxxxxxx.xxx, so long as, concurrent therewith, the Borrowers provide each Lender and their Subsidiaries are provided Agent with notice alerting them to such posting, together with any additional materials required to be delivered therewith, including but not limited to any other Person, consolidated balance sheet of Compliance Certificate required to be provided at such time; provided that the Borrowers and their Subsidiaries as at the end shall deliver paper copies of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of documents to any Lender that requests the Borrowers and their Subsidiaries for to deliver such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agentspaper copies), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and (upon request by Agent) consolidating bases for the Borrowers and their SubsidiariesSubsidiaries (together with any separate balance sheet prepared with respect to ACPS as of the end of such month, and any related statements of income and cash flow), setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;”
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower Clause (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directorsk) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections 10.1.2 of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets Agreement is hereby relettered as clause (m) and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made following clauses are hereby inserted in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but appropriate alphabetical order in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections Section 10.1.2 of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except on consolidated bases for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, a “going concern” or similar itemslike qualification or exception and without any qualification or exception as to the scope of such audit) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents Agent (it being acknowledged agreed that KPMG PricewaterhouseCoopers LLP shall be is acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent; provided, however, that such requirements for the Agents.furnishing of such annual financial statements may be fulfilled by the furnishing of the annual report of Borrowers and Subsidiaries on Form 10-K (within the 120 day period set forth herein), which includes financial statements, as filed with the Securities and Exchange Commission, for the applicable Fiscal Year, and notice to Agent of such filing (within the 120 day period set forth herein);
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes; provided, along withhowever, after that such requirements for the end furnishing of such quarterly financial statements may be fulfilled by the furnishing of the second Fiscal Quarter quarterly report of each Fiscal YearBorrowers and Subsidiaries on Form 10-Q (within the 45 day period set forth herein), a management’s discussion and analysis in connection which includes financial statements, as filed with the foregoingSecurities and Exchange Commission, provided that at for the end applicable Fiscal Quarter, and notice to Agent of such filing (within the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;45 day period set forth herein)
(c) if requested by the Agent during any Financial Reporting Trigger Period, as soon as available, but and in any event not later than within 30 days after the end of each fiscal month (including, without limitation, except for the third last month of each Fiscal QuarterYear, in which case, within 60 days after the end of such fiscal month), unaudited balance sheets as of the end of such fiscal month and the related statements of income and cash flows and same store sales performance metrics flow for such fiscal month and for the portion of the Fiscal Year then elapsed, on a consolidated basis bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholdersshareholders in their capacities as such; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of Agent’s or any AgentLender request, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents annual report filed or notices described to be filed in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request connection with respect to any Guaranteed Pension each Plan or Multiemployer Foreign Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Administrative Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet Form 10-K of the Borrowers and their Subsidiaries Borrower Agent as at of the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection as filed with the foregoingSecurities and Exchange Commission, which statements shall be in reasonable detail andcontain the unqualified, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers Borrower Agent and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their its Subsidiaries as at of the end of such Fiscal Year, and the related on a consolidated statement of incomebasis, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents Administrative Agent (it being acknowledged understood that KPMG LLP shall be any of the top eight U.S. accounting firms are acceptable to the AgentsAdministrative Agent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Administrative Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitationQuarter, the fourth Fiscal Quarter Form 10-Q of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets Borrower Agent as of the end of such Fiscal Quarter and the related Fiscal Year to date, as filed with the Securities and Exchange Commission, which shall contain unaudited, interim financial statements of income Borrower Agent and cash flows and same store sales performance metrics for its Subsidiaries as of the end of such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers basis, and their Subsidiaries, setting shall set forth in comparative form corresponding figures for the corresponding periods of the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and Year, certified by a Senior Officer the principal financial or accounting officer of the Borrowers Borrower Agent as having been prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Administrative Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the principal financial or accounting officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower Agent by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(e) [intentionally omitted;]
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning fifteenth (15th) day of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flowflow and Aggregate Availability for such Fiscal Year, budgets Fiscal Quarter by Fiscal Quarter and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year Fiscal Year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.of
Appears in 1 contract
Samples: First Amendment Agreement (United Natural Foods Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the of Parent Borrower, its audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet and related statements of the Borrowers and their Subsidiaries as at the end of such Fiscal Yearoperations, and the related consolidated statement of income, shareholder’s stockholders’ equity and cash flows as of the Borrowers end of and their Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, which consolidated financial statements shall be audited and certified all reported on by Deloitte & Touche LLP or other independent public accountants of recognized national standing (without qualification as to scope, a “going concern” or similar itemslike qualification or exception (except for any such qualification or exception resulting from any current maturity of Loans hereunder) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable without any qualification or exception as to the Agents 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 Parent Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied (it being acknowledged understood that KPMG LLP the obligation to furnish the foregoing to the Agent and the Lenders shall be acceptable deemed to be satisfied in respect of any Fiscal Year of Parent Borrower by the filing of Parent Borrower’ annual report on Form 10-K for such Fiscal Year with the Commission to the Agentsextent the foregoing are included therein), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.;
(b) as soon as available, but in any event not later than within 45 days after the end of each Fiscal Quarter of the first three fiscal quarters of each Fiscal Year of the Borrowers (includingParent Borrower, without limitationits consolidated balance sheet and related statements of operations, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter fiscal quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the then elapsed portion of the Fiscal Year then elapsedYear, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Parent Borrower and its consolidated subsidiaries on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodconsistently applied, subject to normal year-end adjustments, along with, after audit adjustments and the end absence of footnotes (it being understood that the second Fiscal Quarter obligation to furnish the foregoing to the Agent and the Lenders shall be deemed to be satisfied in respect of each Fiscal Year, a management’s discussion and analysis in connection any fiscal quarter of Parent Borrower by the filing of Parent Borrower’ quarterly report on Form 10-Q for such fiscal quarter with the foregoing, provided that at Commission to the end of extent the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formforegoing are included therein);
(c) during any Reporting Trigger Period, as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their SubsidiariesSubsidiaries and on a consolidating basis for each Borrower, setting forth in comparative form corresponding figures for from the preceding Fiscal Year and the most recent projections provided pursuant Borrowers’ internal operating statements (which are not intended to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as be prepared in accordance with GAAP (other than such same store sales performance metricsGAAP), and certified by a Financial Officer of Parent Borrower as fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsmonth;
(id) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Financial Officer of each the Parent Borrower which, inter alia shall (with such certification i) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) set forth reasonably detailed calculations demonstrating compliance with the financial covenants set for in Section 10.3 (whether or not a Financial Covenant Trigger Period is in effect), (iii) state whether any change in GAAP or in the application thereof has occurred since the date of Parent Borrower’ audited financial statements referred to in Section 9.1.4 and, if any such Person’s capacity as a Senior Officer change has occurred, specifying the effect of such Borrower change on the financial statements accompanying such certificate and not in (iv) identify all Subsidiaries existing on the date of such Person’s individual capacity)certificate and indicating, for each such Subsidiary, whether such Subsidiary is an Obligor or a Foreign Subsidiary and/or an Immaterial Subsidiary and whether such Subsidiary was formed or acquired since the end of the previous fiscal quarter;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them[Reserved];
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning February 15 of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereofsame become publicly available, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, all periodic and special reports other reports, proxy statements and other materials filed by the Parent Borrower or registration statements or prospectuses that any Loan Party files Subsidiary with the Securities and Exchange Commission or with any other Governmental Authority, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party , as the case may be (it being understood that the obligation to furnish the foregoing to the public concerning material changes Agent and the Lenders shall be deemed to or developments in be satisfied to the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) extent the foregoing are filed with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunderCommission), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian PlanBorrowers’ receipt thereof, (iiA) promptly upon receipt copies of all material compliance reports filed and material correspondence regarding any active or dispatchpending investigation or enforcement action concerning any Borrower or Subsidiary Obligor with any state, furnish to the Agents any noticefederal, report local or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request foreign regulatory agency and (vB) promptly following all material correspondence, if any, alleging violation of or requesting compliance by any request thereforBorrower or Subsidiary Obligor with laws, on and after the effective date of the Pension Protection Act of 2006regulations, the Borrowers shall deliver etc. or requests for information pursuant to the Agents copies of any documents or notices described in Sections 101(jinterstate commerce laws, antitrust laws, securities laws, worker safety laws (OSHA), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereofetc.;
(nj) except to the extent already provided for in this Section 10.1.2, promptly upon delivery after the sending thereof, copies of all documents and materials any proposed waiver, consent, or amendment concerning any of a material financial nature or otherwise provided to any other creditor of any the Term Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit AgreementDocuments;
(ok) promptly upon request thereforthe effectiveness thereof, all information pertaining (A) a description of each license from a Governmental Authority which becomes effective after the Closing Date and is material to the Loan Parties conduct of the business of the Borrowers and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Daysrespective Subsidiaries, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts taken as a consignee whole, and (B) a description of each material contract or agreement to which any Borrower or Subsidiary Obligor is a party, including, without limitation, each Specified Vendor Receivables Financing Document (other than contracts and agreements disclosed to Agent pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement10.1.2(h), notify agreements described on Schedule 9.1.23 or Schedule 10.2.1, and without duplication of real property leases identified on Schedule 2.03 to the Agents in writing of such consignment arrangementPerfection Certificate most recently delivered to Agent and Licenses identified on Schedule 4.04 to the Perfection Certificate most recently delivered to Agent);
(l) prior to any sale, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers transfer or other modifications thereofdisposition of Revolver Priority Collateral in an aggregate amount in excess of $5,000,000 in reliance on Section 10.2.5(j), Borrowers shall deliver to Agent a Borrowing Base Report, in form and substance acceptable to Agent in all respects, showing that, after giving pro forma effect to such disposition, no Overadvance exists and Revolver Usage does not exceed the Borrowing Base; and
(rm) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities Each Borrower represents and Exchange Commission) may be delivered electronically warrants that it and if so delivered, shall be deemed to have been delivered on the date each of its Subsidiaries either (i) on which the applicable Borrower posts such documents, has no registered or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; publicly traded securities outstanding or (ii) on which files its financial statements with the Commission and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, each Borrower hereby (x) authorizes the Agent to make the financial statements to be provided under Section 10.1.2(a) and (b) above, along with the Loan Documents, available to all Lenders and (y) agrees that at the time such documents financial statements are provided hereunder, they shall already have been made available to holders of its securities. The Borrowers will not request that any other material be posted on to all Lenders without expressly representing and warranting to the Agent in writing that (A) such Borrower’s behalf on an Internet materials do not constitute material non-public information within the meaning of the federal securities laws (“MNPI”) or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: B) (i) such the Parent Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and its Subsidiaries have no outstanding publicly traded securities, including 144A securities, and (ii) such if at any time the Parent Borrower shall notify or any of its Subsidiaries issues publicly traded securities, including 144A securities, the Agents and each Lender (by telecopier or electronic mail) of Borrowers will, following the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) issuance of such documents. Notwithstanding anything contained hereinsecurities, in every instance make such materials that do constitute MNPI at the Borrowers shall be required to provide paper copies time of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies issuance of such documentssecurities publicly available by press release or public filing with the Commission.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made reflecting all material financial transactions that are necessary to permit preparation of financial statements in accordance with GAAP; and cause to be prepared and furnished to Administrative Agent and Lenders the following (all to be prepared in accordance with GAAP reflecting applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such change is disclosed to Administrative Agent and is consistent with GAAP (provided, that for purposes of determining compliance with the covenant contained in Section 10.3, all accounting terms employed herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with GAAP as in effect on the Post-Confirmation Effective Date and applied on a basis consistent with the application used in the financial transactions; and furnish statements referred to the Agents and the Lenders:in Section 9.1.9)):
(ai) as soon as available, but and in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) within 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements balance sheets of the Parent, InSight Health, Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their respective Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s shareholders’ equity and cash flows flow, on a Consolidated basis, certified without an Impermissible Qualification (except for a going concern qualification with respect to Borrowers’ 2007 Fiscal Year arising solely because of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsChapter 11 Cases) by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and but reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), Administrative Agent and shall set setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(bii) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month hereafter (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets of Parent, InSight Health, Borrowers and their respective Subsidiaries as of the end of such month and the related unaudited statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Borrowers’ Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their SubsidiariesConsolidated basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the principal financial officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting in all material respects the Consolidated financial position and results of operations of Parent, InSight Health, Borrowers and their respective Subsidiaries for such month and period, year-to-date period subject only to normal changes from audit and year-end adjustmentsadjustments and except that such statements need not contain notes;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(jiii) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that which Parent, InSight Health or any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that which Parent, InSight Health or any Loan Party Borrower files with the Securities and Exchange Commission SEC or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by Parent, InSight Health or a Loan Party Borrower to the public concerning material changes to or developments in the business of Parent, InSight Health or such Loan PartyBorrower;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereoffiled in accordance with ERISA in connection with each Plan; and
(rv) such other reports data and information (financial or otherwise) as any Agent may request Administrative Agent, from time to time time, may reasonably request, bearing upon or related to the Collateral or the financial condition or results of operations of Parent, InSight Health, Borrowers and their respective Subsidiaries. The timely delivery by Borrowers to Administrative Agent of the annual report on form 10-K for Parent and its Consolidated Subsidiaries shall satisfy Borrowers’ obligations under Section 10.1.3(i) above, provided that such form 10-K satisfies all of the requirements of Section 10.1.3(i). Concurrently with the delivery of the financial statements described in clause (i) of this Section 10.1.3, Borrowers shall deliver to Administrative Agent a copy of the accountants’ letter to Borrowers’ management that is prepared in connection with any Collateral or any Loan Party’s or the Subsidiary’s such financial condition or businessstatements. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed Concurrently with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on delivery of the date financial statements described in clauses (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e.this Section 10.1.3, soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall cause to be required prepared and furnished to provide paper copies of the Administrative Agent a Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Certificate executed by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies chief financial officer of such documentsBorrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (Insight Health Services Holdings Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made a manner to allow financial statements to be prepared in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than within one hundred twenty (i120) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders' equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Holdings and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a any firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower Agent and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) [reserved];
(c) as soon as available, but and in any event not later than 45 within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Holdings and their its Subsidiaries, setting forth in comparative form form, corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect and noting any purchase accounting adjustments) in order to such same store sales present financial performance metrics)and measure financial covenants at normalized levels, and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(id) concurrently with delivery of financial statements under clauses (a), (b) and clause (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existson a quarterly basis, a Compliance Certificate executed by a Senior Officer the chief financial officer or treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hi) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestBorrowing Base Certificate required pursuant to Section 8.1, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, and a detailed Accounts aging, all in form reasonably satisfactory to Agent and (ii) the report set forth in Section 8.2.1 within the prescribed time period set forth therein;
(g) concurrently with the delivery of the Borrowing Base Certificate required pursuant to Section 8.1, a copy of an Inventory report to the extent required pursuant to Section 8.3.1;
(h) not later than thirty (30) days after the beginning of each Fiscal Year commencing with the Fiscal Year beginning on July 1, 2023 the operating budget and cash flow projections of Holdings and its Subsidiaries for such Fiscal Year, month by month;
(i) promptly after the sending or filing thereof, (i) copies of any proxy statements, financial statements or material reports that any direct or indirect parent of Borrower Agent has made generally available to its shareholders; (ii) copies of any regular, periodic and special reports or registration statements or prospectuses that any direct or indirect parent of Borrower Agent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange (provided no delivery of the Form 8-K will be required provided the Borrower Agent has notified the Agent of such filing); and (iii) copies of any press releases or other statements made available by any Obligor to the public concerning material changes to or developments in the business of such Obligor;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements annual report to be filed in connection with each Plan or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan PartyForeign Plan;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any AgentAgent or Lender, promptly deliver truean update to the information provided in any Beneficial Ownership Certificate delivered pursuant to this Agreement, complete and accurate copies if there has been any change to the list of beneficial owners identified in the then most recently delivered Beneficial Ownership Certification (or, if there has been no such consignment agreement and related documents and any amendmentschange, modifications, supplements, waivers or other modifications thereofwritten confirmation from the Borrower Agent that there has been no such change); and
(rl) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s Obligor's, Subsidiary's or the Subsidiary’s other Obligor's financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a)Notwithstanding the foregoing, solely in the event of the use of clause (B) below, (bi) or (j) (solely if and to the extent that the applicable deadline required by the Securities and Exchange Commission for delivery of the obligations in Sections 10.1.2(a) and 10.1.2(c) for any period are later than the applicable deadlines for delivery set forth in Sections 10.1.2(a) and 10.1.2(c) for such documents are included period, such deadlines set forth in materials otherwise Sections 10.1.2(a) and 10.1.2(c) shall automatically be deemed to be replaced with such later deadlines as required by the Securities and Exchange Commission (without any further action or consent of any party to this Agreement), provided, however, in no event shall (x) the financial statements in Section 10.1.2(a) be delivered more than 130 days after the end of each Fiscal Year, and (y) the financial statements in Section 10.1.2(c) be delivered more than 45 days after the end of each Fiscal Quarter, and (ii) the obligations in Sections 10.1.2(a) and 10.1.2 (c) may be satisfied with respect to any financial statements of Holdings and its Subsidiaries by furnishing (A) the applicable financial statements of Holdings or any direct or indirect parent of Holdings, or (B) the Borrower Agent’s or Holdings’ (or any direct or indirect parent of Holdings), as applicable, Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission; so long as, with respect to each of clauses (A) may be delivered electronically and if so delivered(B), shall be deemed to have been delivered on the date (i) on which to the applicable Borrower posts extent such documentsfinancial statements relate to any direct or indirect parent of Holdings, such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or provides a link thereto on such Borrower’s website indirect parent of Holdings, on the Internet at the website address indicated in writing to the Agents one hand, and the Lenders information relating to Holdings and its Subsidiaries on a standalone basis, on the other hand, which consolidating information shall not be audited, but shall be certified by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies Senior Officer of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender Holdings as having been fairly presented in all material respects and (ii) if such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) financial statements are in lieu of the posting of any financial statements required to be provided under Section 10.1.2(a), such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers consolidated statements shall be required audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Holdings and reasonably acceptable to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Vintage Wine Estates, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; , and furnish to the Agents Agent, for itself and the on behalf of Lenders:
(a) as soon as available, but and in any event not later than within one-hundred twenty (i120) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (yother than the Fiscal Year ending October 1, 2010, for which delivery shall be made within one-hundred fifty (150) days after the date on which the close of such Fiscal Year), audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s cash flow and shareholders’ equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, on a consolidated basis for Holdings and its Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Loan Parties and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(b) as soon as available, but and in any event not later than 45 within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Holdings and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers Holdings, as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter month and period, subject to normal year-period end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than 30 within thirty (30) days after the end of each month (including, without limitation, but within sixty (60) days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Holdings and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers Holdings, as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-period end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), (bSection 10.1.2(a) and (cSection 10.1.2(b) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer Administrative Borrower, on behalf of such Borrower Borrowers and not in such Person’s individual capacity)the other Loan Parties;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Parties by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiarysuch financial statements, or any audit of any of themif any;
(f) concurrently with delivery of financial statements under clause (bc) above, and otherwise promptly after the request by any copies of monthly backlog reports in form reasonably satisfactory to Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time concurrently with the delivery thereof to time upon request Cobham, any certificates, statements or other written information setting forth the calculations of any AgentCobham Earn-Out Payments made or to be made under the Cobham Purchase Agreement;
(h) as soon as available, but and in any event no later than 30 within thirty (30) days prior to after the beginning commencement of each Fiscal Year, a detailed budget for Holdings by Fiscal Quarter for such Fiscal Year of the Borrowers, draft (including projections of the Loan PartiesHoldings’ and its Subsidiaries’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such then current Fiscal Year, on a month by month basismonth) and, promptly when available, any significant revisions of such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such reportbudgets;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission SEC or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), this clause (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commissioni) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (iA) on which the applicable Borrower posts Borrowers post such documents, or provides provide a link thereto thereto, on such Borrower’s Borrowers’ website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; internet or (iiB) on which such documents are posted on such Borrower’s Borrowers’ behalf on an Internet the SEC’s XXXXX database or intranet website; provided, if anyfurther, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Administrative Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) Agent of the posting of any such documents referred to in clauses (A) or (B);
(j) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(k) such other reports and provide information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s, Subsidiary’s or other Loan Party’s financial condition or business; Simultaneously with retaining accountants for their annual audit, Loan Parties shall send a letter to the Agents accountants, with a copy to Agent, for itself and on behalf of Lenders, notifying the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies accountants that one of the Compliance Certificates to the Agents primary purposes for retaining their services and the obtaining audited financial statements is for use by Agent and Lenders. Except Agent is authorized to send such notice if Loan Parties fail to do so for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreason.
Appears in 1 contract
Samples: Loan Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and The Obligated Parties shall promptly furnish to the Agents all such information regarding the Obligated Parties’ and each of their Subsidiaries’ financial and business affairs as either of the Agents or any Lender (through either of the Agents, and the Lendersapplicable Agent agrees to pass along all such reasonable requests by any Lender to the Obligated Parties) may reasonably request. Without limiting the foregoing, the Obligated Parties will furnish, or cause to be furnished, to both Agents (with sufficient copies to the Administrative Agent for distribution to each Lender) the following, in such detail as either of the Agents or the Lenders (through either of the Agents, and the applicable Agent agrees to pass along all such reasonable requests by any Lender to the Obligated Parties) shall reasonably request:
(a) The Obligated Parties will furnish, or cause to be furnished, as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year of Xxxxx, consolidated audited balance sheets and (y) the date on which the audited financial statements of the Borrowers income, cash flow, and their stockholders’ equity for Xxxxx and its Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of for such Fiscal Year, and the related consolidated statement of incomeaccompanying notes thereto, shareholder’s equity and cash flows of setting forth in each case in comparative form figures for the Borrowers and their Subsidiaries for such previous Fiscal Year, which all in reasonable detail, fairly presenting the financial position and the results of operations of Xxxxx and its Subsidiaries on a consolidated basis as at the date thereof and for the Fiscal Year then ended, and prepared in accordance with GAAP; provided that the Obligated Parties will furnish or cause to be furnished unaudited drafts of each of such financial statements to the Agents as soon as available, but in any event not later than 90 days after the close of each Fiscal Year of Xxxxx. Such Financial Statements shall be audited in accordance with generally accepted auditing standards by and certified (without qualification as to scope, “going concern” or similar items) accompanied by a firm of report thereon containing an opinion that is unqualified in any respect of, independent certified public accountants selected by Xxxxx (it being agreed by the parties hereto, however, that at any time after the Closing Date, the Agents shall have the right, in their reasonable discretion, to require that Xxxxx and its Subsidiaries retain independent certified public accountants of recognized national standing selected to perform such examinations and provide such reports). The Obligated Parties hereby authorize each of the Agents to communicate directly with the Obligated Parties’ certified public accountants and, by this provision, authorizes such accountants to disclose to each of the Borrowers Agents any and acceptable all financial statements and other supporting financial documents and schedules relating to the Obligated Parties and to discuss directly with each of the Agents (it being acknowledged the finances and affairs of the Obligated Parties, provided that KPMG LLP the applicable Agent shall be acceptable provide the Obligated Parties the opportunity to the Agents), attend and shall set forth participate in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agentssuch discussions.
(b) The Obligated Parties will furnish or cause to be furnished,
(i) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingQuarter, without limitation, the fourth other than a Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)that is a year end, an unaudited balance sheets as sheet, income statement, and statement of the end of such Fiscal Quarter cash flow for Xxxxx and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, its Subsidiaries prepared on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for period from the preceding beginning of the current Fiscal Year and to the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer end of the Borrowers as prepared such Fiscal Quarter, all in accordance with GAAP (other than with respect to such same store sales performance metrics), reasonable detail and fairly presenting the financial position and results of operations of Xxxxx and its Subsidiaries as at the date thereof and for such Fiscal Quarter and period, and, in each case, in comparable form, figures for the corresponding period in the prior Fiscal Year, and in the Latest Projections, and prepared in accordance with GAAP (other than the omission of footnotes and subject to normal year-end audit adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection if any) applied consistently with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall audited Financial Statements required to be in summary form;delivered pursuant to Section 6.2(a) and
(cii) as soon as available, but in any event not later than 30 days after the end of each month (includingFiscal Month, without limitation, the third month of each Fiscal Quarter), an unaudited balance sheets as sheet, income statement, and statement of the end of such month cash flow for Xxxxx and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, its Subsidiaries prepared on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for period from the preceding beginning of the current Fiscal Year and to the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer end of the Borrowers as prepared such Fiscal Month, all in accordance with GAAP (other than such same store sales performance metrics), reasonable detail and fairly presenting the financial position and results of operations of Xxxxx and its Subsidiaries as at the date thereof and for such month period, and, in each case, in comparable form, figures for the corresponding period in the prior Fiscal Year, and periodin the Latest Projections, and prepared in accordance with GAAP (other than the omission of footnotes and subject to normal year-end audit adjustments, if any, and, solely in the case of the financial statements for the Fiscal Months of January and February of each Fiscal Year, subject to normal year-end adjustments;
(i) concurrently with delivery of audit adjustments from the prior Fiscal Year that have an impact on the financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hMonths) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files applied consistently with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents audited Financial Statements required to be delivered pursuant to Sections 10.1.2(aSection 6.2(a). Xxxxx shall certify by a certificate signed by a Responsible Officer that all such Financial Statements have been prepared in accordance with GAAP (other than the omission of footnotes and subject to normal year-end audit adjustments, if any) applied consistently with the audited Financial Statements required to be delivered pursuant to Section 6.2(a) and present fairly, subject to normal year-end audit adjustments, the financial position of Xxxxx and its Subsidiaries as at the dates thereof and their results of operations for the periods then ended.
(c) The Obligated Parties will cause to be furnished, with each of the Financial Statements delivered pursuant to Section 6.2(a), (b) or (j) (a letter from the independent certified public accountants that audited such Financial Statements to the extent effect that such accountants are familiar with this Agreement and that, in auditing such Financial Statements, they did not become aware of any such documents are included fact or condition which then constituted a Default or Event of Default with respect to a financial covenant set forth in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so deliveredSection 8.21, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet websiteexcept for those, if any, described in reasonable detail in such letter.
(d) The Obligated Parties will furnish or cause to which be furnished, with each Lender of the Financial Statements delivered pursuant to Section 6.2(a), and with each of the Financial Statements delivered pursuant to Section 6.2(b)(i), a certificate of a Responsible Officer of Xxxxx in the form of Exhibit C (a “Compliance Certificate”), or another form acceptable to the Agents have access (whether a commercialin their discretion, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents setting forth in reasonable detail the calculations required to establish compliance with the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given covenants set forth in Section 8.21 during the period covered by such Agent or such Lender Financial Statements and as at the end thereof and (ii) except as explained in reasonable detail in such Borrower shall notify the Agents and each Lender certificate, (by telecopier or electronic mailA) stating that all of the posting representations and warranties of any such documents and provide to the Agents Obligated Parties contained in this Agreement and the Lenders by electronic mail electronic versions (i.e., soft copies) other Loan Documents are correct and complete in all material respects as at the date of such documents. Notwithstanding anything contained hereincertificate as if made at such time, except for those that speak as of a particular date, (B) stating that the Obligated Parties are, at the date of such certificate, in every instance the Borrowers shall be required to provide paper copies compliance in all material respects with all of the Compliance Certificates to the Agents their respective covenants and agreements in this Agreement and the Lenders. Except for other Loan Documents, (C) stating that no Default or Event of Default then exists or existed during the period covered by such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.Financial Statements,
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year Year; provided that the furnishing of Parent’s annual report on Form 10-K for such year, as filed with the Securities and Exchange Commission, will satisfy the most recent projections provided pursuant Parent’s obligation under this Section 10.1.2
(a) with respect to Section 10.1.2(g) and other information acceptable such year except with respect to the Agents.requirement that such financial statements be reported on without a “going concern” or like qualification or exception (except as expressly permitted above), or a qualification arising out of the scope of the audit;
(b) (i) as soon as available, but and in any event not later than within 30 days after the end of each month, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (including, solely during the Fiscal Year ending 2021 and to the extent reasonably practicable, corresponding profit and loss figures for the prior Fiscal Year as if the US Footwear Acquisition had been consummated on a pro forma basis), preceding year interim figures and their current year projections, and certified by the chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year‑end adjustments and the absence of footnotes; and (ii) as soon as available, and in any event within 45 days after the end of each the last month in a Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedQuarter, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (including, solely during the Fiscal Year ending 2021, corresponding profit and loss figures for the most recent projections provided pursuant to Section 10.1.2(g) prior Fiscal Year as if the US Footwear Acquisition had been consummated on a pro forma basis), preceding year interim figures and their current year projections, and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustmentsyear‑end adjustments and the absence of footnotes, along with, after the end of the second Fiscal Quarter of each Fiscal Year, together with a management’s corresponding discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the results from management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and above (cother than with respect to financial statements delivered under clause (b)(i) above and (ii) at with respect to a month that is the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedlast month in a Fiscal Quarter), or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer chief financial officer of each Borrower Agent, which shall include reasonably detailed calculations of the Fixed Charge Coverage Ratio for the most recent four Fiscal Quarters (it being understood that compliance with the Fixed Charge Coverage Ratio shall only be required to the extent contemplated by Section 10.3); and (ii) concurrently with delivery of financial statements under clause (b)(ii) above, any updates to Schedules 8.5, 8.6.1, 9.1.4, 9.1.11, 9.1.12, 9.1.15 and 9.1.20 as required therein to reflect changes resulting from transactions permitted under the Loan Documents (for the avoidance of doubt, no Obligor shall be required to update any such certification Schedules (other than Schedule 8.5 and Schedule 8.6.1) on an earlier date pursuant to any other Sections (other than Section 8.5 and Section 8.6.1) of this Agreement and any representation regarding such Schedules shall be deemed accurate when made where such Schedule was timely updated in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacityaccordance with this provision);
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s consolidated balance sheets, results of operations, profit and loss, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s reasonable request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 10.1.2(g) shall be deemed delivered for purposes of this Agreement when Obligors notify Agent that such information is posted to the website of any of the Obligors or the website of the Securities and Exchange Commission;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request promptly, and in any event not later than 5 Business Days after each board of any Agentdirectors meeting of Parent, furnish copies of the materials related to the Agents a copy financial performance and outlook of Parent and its Subsidiaries provided by management to the most recent actuarial statement required directors for such board meeting (excluding any items (i) subject to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Planattorney-client privilege, (ii) promptly upon receipt which relate to proposed financing transactions which contain competitive information or dispatch, furnish to the Agents any notice, report present a conflict of interest with Agent or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver the disclosure of which would breach a third party’s confidentiality agreement which prohibits dissemination of such information to Agent or Lenders pursuant to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(jterms thereof), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(nj) promptly upon delivery thereof, copies at Agent’s request on behalf of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party Agent or any SubsidiaryLender, including but not limited up to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agentone time per calendar year, a thirteen copy of each license set forth on Schedule 9.1.12 (13) week cash flow report;
(q) promptly but as such Schedule may be amended from time to time in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to accordance with Section 4.1 of the Xxxxxxx Distribution Agreement10.1.2(c), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof); and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyObligor’s or the Subsidiary’s ’ financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Abl Loan and Security Agreement (Rocky Brands, Inc.)
Financial and Other Information. Keep adequate records Deliver to Bank in form and books detail reasonably satisfactory to Bank, and in such number of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenderscopies as Bank may reasonably request:
(a) as soon as available, but in any event not later than (i) Within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year fiscal year, GT's consolidated financial statements for such year, audited by a certified public accountant with an unqualified opinion, and GT's consolidating financial statements for such year, prepared by GT with a comparison to projections for such fiscal year and the results of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal prior fiscal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(cb) as soon as available, but in any event not later than Within 30 days after the end of each month (includingmonth, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of GT's consolidated and consolidating financial statements for such month period and the related statements of income and cash flows and same store sales performance metrics fiscal year to date, prepared by GT with a comparison to projections for such month period and year-to-date and the same period and year-to-date period for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal prior fiscal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at Within 30 days after the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsfiscal quarter, a Compliance Certificate executed compliance certificate, substantially in the form of Exhibit A attached hereto, with appropriate insertions, signed by a Senior Officer responsible officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)GT;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later Not less than 30 days prior to the beginning end of each Fiscal Year fiscal year of the BorrowersGT, draft monthly projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by following fiscal year, prepared by GT. The balance sheet and for such Fiscal Year, cash flow projections shall be prepared on a month by month consolidated basis and the income statement projection shall be prepared on a consolidated and consolidating basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(he) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly Within 30 days after the sending or date of filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental AuthorityCommission, or any securities exchange; and copies of GT's Form 10-K Annual Report, Form 10-Q Quarterly Report and any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan PartyForm 8-K Current Report;
(kf) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) Within 20 days after the end of each calendar month in each Fiscal Year monthly accounting period, a borrowing certificate setting forth the respective amounts of Acceptable Receivables and Acceptable Inventory as of the Borrowerslast day of the 36 preceding month;
(g) Within 20 days after the end of each monthly accounting period, a certification by a Senior Officer of each Borrowersummary report and detailed statement showing, in form and substance reasonably satisfactory to the Agents, separately for (i) that all rent payments Receivable Debtors located in the United States and Canada outside of the Borrowers Quebec and their Subsidiaries have been made, (ii) that no lease defaults exist for such periodReceivable Debtors located elsewhere, an aging and reconciliation of Receivables;
(iiih) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of Within 20 days after the end of such calendar montheach monthly accounting period, a summary report and detailed statement showing an aging of accounts payable and held checks;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents If collections are required to be delivered pursuant to Sections 10.1.2(a)Bank, (b) or a schedule of the amounts so collected and delivered to Bank;
(j) Within 20 days after the end of each monthly accounting period a summary report and detailed schedule of Inventory itemizing and describing separately for each class of Inventory the kind, quality and quantity thereof, its cost, and such other information as Bank may reasonably request;
(k) Within 20 days after the end of each semi- annual period, a listing of the names and addresses of all Receivable Debtors;
(l) Promptly upon request of Bank, such other statements, lists of property and accounts, budgets, forecasts or reports as to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents GT or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.Subsidiaries as Bank may reasonably request;
Appears in 1 contract
Samples: Credit Agreement (Gt Bicycles Inc)
Financial and Other Information. Keep Each Loan Party will, and will cause its Subsidiaries to, keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Agent (for distribution to Lenders:):
(a) as soon as available, but and in any event not later than within ninety (i90) 90 days after the close end of each Fiscal YearYear (or such later date as Agent may agree), the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion Consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, a “going concern” or similar itemslike qualification or exception and without any qualification or exception as to the scope of such audit or other material qualification or exception, except for any such qualification or exception with respect to any Debt maturing within three hundred sixty-four (364) days after the date of such financial statements) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated Consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) at any time that Total Excess Availability is less than the greater of (i) twelve and one-half percent (12.5%) of the Total Loan Cap and (ii) $5,000,000 or a Specified Event of Default exists or has occurred and is continuing, upon the request of Agent, as soon as available, but and in any event not later than 30 within thirty (30) days after the end of each month of the first two Fiscal Months of each Fiscal Quarter and within forty-five (including, without limitation, 45) days after the third month end of the last Fiscal Month of each Fiscal Quarter), unaudited balance sheets as of the end of such month Fiscal Month and the related statements of income and cash flows and same store sales performance metrics flow for such month Fiscal Month and for the portion of the Fiscal Year then elapsed, on a consolidated Consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations for such month Fiscal Month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by the chief financial officer of Borrower Agent (which shall include in reasonable detail the calculations necessary to demonstrate compliance with Section 10.3 regardless of whether a Senior Officer of each Borrower (with such certification to be Compliance Period is then in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacityeffect);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (Parent or the audit committee of the board of directors) of any other Loan Party by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause not later than sixty (b60) above, and otherwise promptly days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft annual projections of the Loan Parties’ consolidated balance sheets, results of operations, and cash flow, budgets flow of Parent and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) its Subsidiaries for the next three Fiscal Years, year by year, and for such then current Fiscal Year, on a month Fiscal Quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinQuarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan Party’s trade payables (includingnot more frequently than monthly, without limitationor if the Borrowing Base Report is being delivered weekly, with respect to the Xxxxxxx Debtthen not more frequently than weekly), specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(ki) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowerspromptly upon Agent’s written request, a certification by a Senior Officer of each Borrowernew Beneficial Ownership Certification, in form and substance reasonably satisfactory acceptable to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to when there has been any change in the Agents a copy of information included in the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation Beneficial Ownership Certification and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by Agent or any Lender in order for such Lender to comply connection with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofBeneficial Ownership Regulation; and
(rj) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition condition, ownership or business. Documents Notwithstanding anything to the contrary contained in this Agreement, all financial statements and reports required hereunder (including, without limitation, those required pursuant to Section 10.1.2(a) and Section 10.1.2(b) hereof) shall, upon notice of such filing from Borrower Agent to Agent, be deemed delivered to Agent and the Lenders upon delivery of such financial statements and reports to the SEC pursuant to Parent’s public company reporting requirements (and such financial statements and reports shall be readily available to Agent and Lenders). In addition, upon the filing of Parent’s 10-Q report with the SEC for any Quarterly Reporting Period, such report shall be deemed to satisfy the requirements of clause (b) above, and upon the filing of Parent’s 10-K report with the SEC for any Fiscal Year, such report shall be deemed to satisfy the requirements of clause (a) above. All financial statements and reports required to be delivered pursuant to Sections 10.1.2(a)this Section 10.1.2 may, at Borrower Agent’s option, be delivered via electronic mail to Agent (bfor distribution to Lenders) or (j) (to the extent any such documents are included in materials otherwise filed accordance with Section 14.3 hereof. Foreign Loan Parties shall comply in all material aspects with the Securities Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU or the Applicable Laws in any relevant jurisdiction implementing this Directive, as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements, and Exchange Commission) may be delivered electronically and if so deliveredpromptly, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower request from Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender provide to Agent evidence (in form and the Agents have access (whether a commercial, third-party website or whether sponsored by any substance satisfactory to Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any same following such documents and provide to compliance or the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to above, and Applicable Laws in any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsjurisdiction that relates to.
Appears in 1 contract
Samples: Loan and Security Agreement (Computer Task Group Inc)
Financial and Other Information. Keep adequate records Provide Lender, and books cause Guarantor and Manager to provide to Lender, at its address set forth in Section 10.7 and at GMAC Commercial Mortgage Corporation, 0000 Xxxxxxx Xxxxxx, Suite 1460, Dallas, Texas 75225, the following financial statements and information on a continuing basis during the term of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLoan:
(a) as soon as available, but in any event not later than Within one hundred twenty (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15120) days after the end of each calendar month in each Fiscal Year fiscal year of Guarantor, consolidated financial statements for the BorrowersGuarantor and its subsidiaries, a certification by a Senior Officer of each including Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined prepared in accordance with GAAP generally accepted accounting principles consistently applied, audited by a nationally recognized accounting firm or independent certified public accounting firm acceptable to Lender, which statements shall include a balance sheet and a statement of Inventory held on income and expenses for the year then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender, upon its filing thereof, a consignment basiscopy of its Form 10 K as filed with the United States Securities and Exchange Commission.
(b) Within ninety (90) days after the end of each fiscal year of the Facility and Borrower (if different from the Facility), unaudited annual financial statements of the operations of the Facility, prepared by a financial officer of Borrower in accordance with generally accepted accounting principles consistently applied, and certified as true and correct in all material respects by a financial officer of Borrower, which statements shall include a balance sheet and a statement of income and expenses for the year then ended.
(ivc) describing Within forty-five (45) days after the long-term debt end of each fiscal month of the Borrowers Facility (if different from Borrower), unaudited interim financial statements of the Facility, certified as true and their Subsidiaries correct in all material respects by a financial officer of Borrower, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet, statement of income and expenses for the quarter then ended.
(d) Within forty-five (45) days after the end of each fiscal quarter of Borrower, unaudited interim financial statements of Borrower certified as true and correct in all material respects by a financial officer of Borrower or General Partner, as the case may be, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet and statement of income and expenses for the quarter then ended.
(e) Within forty-five (45) days after the end of each fiscal quarter of Guarantor, unaudited interim financial statements of Guarantor, certified as true and correct in all material respects by a financial officer of Guarantor, subject to customary year end adjustments, which statements shall be prepared in accordance with general accounting principles consistently applied and shall include a balance sheet and a statement of income and expenses for the quarter then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender a copy of its Form 10 Q as filed by Guarantor with the United States Securities and Exchange Commission.
(f) Within forty-five (45) days after the end of each fiscal quarter of Borrower, a statement of the number of unit days available and the actual residents days incurred for such quarter, together with quarterly census information of the Facility as of the end of such calendar month;quarter in sufficient detail to show resident-mix (i.e., private, Medicare, Medicaid, and VA) on a daily average basis for such year through the end of such quarter, certified by a financial officer of Manager or Borrower to be true and correct. Such statements of the Facility shall be accompanied by the Summary of Financial Statements and Census Data attached hereto as Exhibit “D”.
(ig) promptly upon request of any AgentIf requested by Lender, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(dwithin thirty (30) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and days after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Planfiling deadline, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices may be extended from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereoftime to time, copies of the federal income tax returns of Borrower and Guarantor and all documents state and materials local tax returns of a material financial nature or otherwise provided to any other creditor of any Loan Party or any SubsidiaryBorrower, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;together with all supporting documentation and required schedules.
(oh) promptly upon request therefor, all information pertaining to the Loan Parties If and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Daysapplicable, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than within ten (10) days after filing or receipt, all Medicaid and/or Medicare cost reports and any Loan Partyamendments thereto filed with respect to the Facility and all responses, audit reports or inquiries with respect to such cost reports.
(i) If and to the extent applicable, within ten (10) days after receipt, copies of all licensure and certification survey reports and statements of deficiencies (with plans of correction attached thereto).
(j) If and to the extent applicable, within ten (10) days after receipt, a copy of the “Medicaid Rate Calculation Worksheet” (or the equivalent thereof) from the applicable agency.
(k) If and to the extent applicable, within ten (10) days of receipt, a statement of the number of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, “default rate” shall have the meaning ascribed to it in that certain applicable Medicare rate notification letter prepared in connection with any review or survey of the Facility.
(l) Within three (3) days of receipt, any and all notices (regardless of form) from any and all federal or state agencies, including any licensing and/or certifying agencies that the Facility license and/or the participation in Medicare, Medicaid or any other federal or state health care program, as applicable, of the Facility or any of its owners, officers, directors, agents or managing employees is being downgraded to a substandard category, revoked, suspended, or subjected to federal or state health care program exclusion, civil monetary penalty, criminal penalty, or false claims recovery, or that any such action is pending, threatened or being considered.
(m) If requested by Lender, evidence of payment by Borrower or Manager of any applicable provider bed taxes or similar taxes, which Borrower or Manager agrees to pay.
(n) If requested by Lender, within forty-five (45) days after the end of each of Borrower’s entry into any consignment arrangement fiscal quarters, and more frequently, if requested by Lender, an aged accounts payable report and an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of patient-mix (whether i.e., private, Medicare, Medicaid, and V.A.) both by the account age classifications of 30 days, 60 days, 90 days, 120 days and over 120 days. Any deficiency (identified above) shall be corrected by the date required by the licensure and certification agency, if such consignment arrangement is documented deficiency could adversely affect either (a) the right to continue participation in Medicare and Medicaid for existing residents or otherwise(b) in which such Loan Party acts the right to admit new Medicare and Medicaid residents, or (c) the right to continue operating the Facility as a consignee continuing care facility. If and to the extent applicable, Lender reserves the right to require that the annual financial statements of Borrower be audited and prepared by a nationally recognized accounting firm or independent certified public accountant acceptable to Lender, at their respective sole cost and expense, if (includingi) an Event of Default exists, without limitation(ii) if required by internal policy or by any investor in any securities backed in whole or in part by the Loan or any rating agency rating such securities, pursuant or (iii) if Lender has reasonable grounds to Section 4.1 believe that the unaudited financial statements do not accurately represent the financial condition of Borrower, Guarantor, or Manager as the Xxxxxxx Distribution Agreement)case may be. Lender further reserves the right to require such other financial information of Borrower, notify Guarantor, Manager and/or the Agents Facility, in writing of such consignment arrangementform and at such other times (including monthly or more frequently) as Lender shall reasonably deem necessary, specifying the consignor, the consignee, the term of the consignment arrangement, the goods and Borrower agrees promptly to provide or to cause to be consigned provided, such information to Lender. All financial statements must be in the form and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) detail as any Agent Lender may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreasonably request.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all of its financial transactions; and furnish cause to be prepared and furnished to Lender the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers' certified public accountants concur in any change therein and such change is disclosed to Lender and is consistent with GAAP and, if required by Lender, the Lenders:financial covenants set forth in SECTION 10.3 are amended in a manner requested by Lender to take into account the effects of such change):
(ai) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal YearYear of Borrowers, the unaudited consolidated audited balance sheet sheets of the Borrowers each Borrower and their its Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s shareholders' equity and cash flows of the Borrowers flow, on a Consolidated and their Subsidiaries for such Fiscal YearConsolidating basis, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and but reasonably acceptable to Lender and unqualified (except for a qualification for a change in accounting principles with which the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agentsaccountant concurs), and shall set setting forth in each case in comparative form the corresponding Consolidated and Consolidating figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(bii) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (includinghereafter, without limitation, including the third last month of each Borrowers' Fiscal Quarter)Year, unaudited balance sheets of each Borrower and its Subsidiaries as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the such Borrower's Fiscal Year then elapsed, on a consolidated basis for the Borrowers Consolidated and their SubsidiariesConsolidating basis, setting forth in each case in comparative form (i) the corresponding Consolidated and Consolidating figures for the preceding Fiscal Year and (ii) a variance analysis compared to the most recent projections provided pursuant to Section 10.1.2(g) relevant Projections, and certified by a Senior Officer the principal financial officer of the Borrowers such Borrower as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the Consolidated financial position and results of operations of such Borrower and its Subsidiaries for such month and period, period subject only to normal changes from audit and year-end adjustmentsadjustments and except that such statements need not contain notes;
(iii) as soon as available, and in any event within 45 days after the end of each quarter hereafter, including the last quarter of Borrowers' Fiscal Year, unaudited balance sheets of each Borrower and its Subsidiaries as of the end of such quarter and the related statements of income, shareholders' equity and cash flow for such quarter and for the portion of such Borrower's Fiscal Year then elapsed, on a Consolidated and Consolidating basis, setting forth in each case in comparative form (i) concurrently with delivery of financial statements under clauses (a), (b) the corresponding Consolidated and (c) above Consolidating figures for the preceding Fiscal Year and (ii) at a variance analysis compared to the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedrelevant Projections, or more frequently if requested and certified by the Agents while an Event principal financial officer of Default exists, a Compliance Certificate executed by a Senior Officer such Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer operations of such Borrower and its Subsidiaries for such quarter and period subject only to changes from audit and year-end adjustments and except that such statements need not in such Person’s individual capacity)contain notes;
(eiv) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee occurrence of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any SubsidiaryBorrowing Base Reporting Event, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 20 days prior to the beginning of after each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestcalendar month, a listing of each Loan Party’s all of Borrowers' trade payables (includingas of the last Business Day of such month or week, without limitation, with respect to the Xxxxxxx Debt)as applicable, specifying the trade creditor name of and balance duedue each trade creditor, and and, a monthly detailed trade payable agingagings in form acceptable to Lender;
(jv) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that which any Loan Party Borrower has made generally available to its shareholders; shareholders and copies of any regular, periodic and special reports or registration statements or prospectuses that which any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and ;
(vi) promptly after the filing thereof, copies of any press releases annual report to be filed in accordance with ERISA in connection with each Plan; and
(vii) such other data and information (financial and otherwise) as Lender, from time to time, may reasonably request, bearing upon or other statements made available by a Loan Party related to the public concerning material changes to Collateral or developments in the business any Borrower's and any of such Loan Party;
(k) compliance certificates (its Subsidiaries' financial condition or such other evidence results of compliance) operations. Concurrently with the financial covenants and other terms delivery of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), financial statements described in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, clause (i) that all rent payments of this SECTION 10.1.3, Borrowers shall deliver to Lender a copy of the accountants' letter to Borrowers' management that is prepared in connection with such financial statements and shall cause to be prepared and shall deliver to Lender a certificate of the aforesaid certified public accountants stating to Lender that, based upon their examination of the financial statements of Borrowers and their Subsidiaries have been madeperformed in connection with their examination of said financial statements, (ii) nothing came to their attention that no lease defaults exist for caused them to believe that Borrowers were not in compliance with SECTIONS 10.2.2, 10.2.3, 10.2.4, 10.2.6, 10.2.7, 10.2.8, 10.2.14, 10.2.15, 10.2.16 OR 10.3 hereof, or, if they are aware of such periodnoncompliance, (iii) as specifying the nature thereof, and acknowledging, in a manner satisfactory to Lender, that they are aware that Lender is relying on such financial statements in making its decisions with respect to the amount of outstanding consignment accounts payable for such calendar month and Loans. Concurrently with the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt delivery of the Borrowers and their Subsidiaries as of the end of such calendar month;
financial statements described in clauses (i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each of this SECTION 10.1.3, or more frequently if requested by Lender (by telecopier during any period that a Default or electronic mail) an Event of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e.Default exists, soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall cause to be required prepared and furnished to provide paper copies of the Lender a Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Certificate executed by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies chief financial officer of such documentsBorrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (Proxymed Inc /Ft Lauderdale/)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Obligors and analysis in connection with the foregoingSubsidiaries, which consolidated statements shall all be in reasonable detail and, other than with respect to such same store sales performance metrics, and prepared in accordance with GAAP (except for the absence of footnotesGAAP, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified accompanied by (i) a certification (without qualification as to scope, scope or “going concern” (or similar itemssimilar) qualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to Agent (with the Agents (it being acknowledged Agent hereby acknowledging and agreeing that each of PricewaterhouseCoopers, Ernst & Young, KPMG LLP and Deloitte & Touche are acceptable), which certification shall be acceptable prepared in accordance with GAAP and applicable Securities Laws and (ii) an attestation report of such certified public accountants as to the Agents)Obligors’ internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but in any event not later than within 45 days after the end of each Fiscal Quarter fiscal quarter (but within 60 days after the last fiscal quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter fiscal quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter fiscal quarter and for the portion of the Fiscal Year then elapsed, on a (i) consolidated basis for Obligors and Subsidiaries and (ii) combined basis for Obligors and Subsidiaries other than the Borrowers SPEs and their SubsidiariesPassive Companies, setting forth in comparative form corresponding figures for the preceding Fiscal Year and as well as the most recent applicable projections provided pursuant to for such period delivered under Section 10.1.2(g10.1.2(f) and certified by the Borrower Agent pursuant to a certificate signed on behalf of Borrower Agent by a Senior Officer of the Borrowers Borrower Agent (with such certification to be in such Person’s capacity as a Senior Officer of such Obligor and not in such Person’s individual capacity) as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and quarterly period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and as well as the most recent applicable projections provided pursuant to for such period delivered under Section 10.1.2(g10.1.2(f) and certified by a Senior Officer (with such certification to be in such Person’s capacity as a Senior Officer of the Borrowers such Obligor and not in such Person’s individual capacity) of Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower Agent (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower Agent and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligor by independent accountants in connection with the accounts or books of any Loan Party Obligor or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 45 days prior to after the beginning of each the then current Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesObligors’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the current Fiscal Year and the next three two Fiscal Years, year by year, and for such the current Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan Party’s the Obligors’ consolidated trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants Obligor, if and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or extent such information is not available on the lenders under SEC’s or the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthParent’s website;
(i) promptly upon request after the sending or filing thereof, copies of any Agent, furnish to the Agents a copy of the most recent actuarial statement required annual report to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 filed in connection with each Plan or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Foreign Plan, ;
(iij) promptly upon receipt or dispatch, furnish the consummation of the transactions relating to the Agents Restatement Date or the Convertible Note Debt or any noticeRefinancing Debt, report or demand sent or received copies certified by a Senior Officer as complete and correct copies (with such certification to be in respect such Person’s capacity a Senior Officer of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 an Obligor and 4068 not in such Person’s individual capacity) of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver the documents for the transactions relating to the Agents all information required to be reported Restatement Date or of the Convertible Note Debt Documents or the documents relating to the PBGC under Section 4010 of ERISARefinancing Debt, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), case may be;
(k) or promptly (lx) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party Obligor or any SubsidiarySubsidiary and (y) upon receipt thereof, including but not limited to copies of all material notices or information or material non-ordinary course correspondence received from, or on behalf of, any items delivered pursuant to the Revolving Credit Agreementother creditor of any Obligor or any Subsidiary (including, without limitation, any default or similar notices);
(ol) promptly upon request therefor, all information pertaining to the Loan Parties Obligors and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rm) within (i) 15 days after the end of each Fiscal Quarter, a detailed summary of all Hedging Agreements, and (ii) 45 days after the end of each Fiscal Quarter, a detailed summary of Bank Products (as defined in the First Lien Loan Agreement) and any other bank products that constitute Obligations obtained by the Obligors then outstanding (assuming such agreements were terminated on the date of each summary) which shall include, but not be limited to, the amount, interest rate, counterparty institution, and xxxx to market exposure for each such product.
(n) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyObligor’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections Section 10.1.2(a), (b) or (jSection 10.1.2(b) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet internet at the website address indicated in writing to the Agents Agent and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s the Borrowers’ behalf on an Internet internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents Agent or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents Agent and the Lenders. Except for such Compliance Certificates, no Agent shall have any no obligation 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 Borrowers 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. The Obligors hereby acknowledge that (a) Agent will make available to the Lenders materials and/or information provided by or on behalf of the Obligors hereunder (collectively, “Borrower Materials”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Obligors or their securities) (each, a “Public Lender”). The Obligors hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Obligors shall be deemed to have authorized the Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Obligors or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 14.11); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available to the Public Lenders; and (z) Agent and Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable for Public Lenders. THE AGENT PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the Agent’s transmission of Borrower Materials through the internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent or such Related Party; provided, however, that in no event shall the Agent or any of its Related Parties have any liability to any Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
Appears in 1 contract
Samples: Second Lien Loan and Security Agreement (Bon Ton Stores Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and furnish cause to be prepared and to be furnished to Agent and Lenders the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrower's certified public accountants concur in any change therein, such change is disclosed to Agent and the Lenders:is consistent with GAAP):
(ai) as soon as available, but and in any event not later than (i) within 90 days (or to the extent that a filing extension is granted by the SEC, within 150 days) after the close of each Fiscal Year, the unaudited consolidated unqualified audited balance sheet sheets of the Borrowers Borrower and their its Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s shareholders' equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearflow, which consolidated financial statements shall be audited and on a Consolidated basis, certified (without material qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and Borrower but reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agentsaccountant concurs), and shall set setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within 30 days after the end of each month hereafter (other than the last month of any Fiscal Quarter or any Fiscal Year), unaudited balance sheets of Borrower and its Subsidiaries as of the end of such month and the related unaudited Consolidated statements of income and cash flow for such month and for the portion of Borrower's financial year then elapsed, on a Consolidated basis, setting forth in comparative form the corresponding figures for the preceding Fiscal Year and certified by the most recent projections provided pursuant principal financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrower and its Subsidiaries for such month and period subject only to Section 10.1.2(g) changes from audit and other information acceptable to the Agents.year-end adjustments and except that such statements need not contain notes;
(biii) as soon as available, but and in any event not later than 45 within 50 days after the end of each Fiscal Quarter of each Fiscal Year of hereafter, including the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each Borrower's Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets of Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited Consolidated statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year Borrower's financial year then elapsed, on a consolidated basis for the Borrowers and their SubsidiariesConsolidated basis, setting forth in comparative form the corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the principal financial officer of the Borrowers Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the Consolidated financial position and results of operations of Borrower and its Subsidiaries for such Fiscal Quarter and period, period subject only to normal changes from audit and year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion adjustments and analysis in connection with the foregoing, provided except that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formsuch statements need not contain notes;
(civ) as soon as available, but and in any event not later than within 30 days after the end of each month Fiscal Quarter (including, without limitation, except the third month last Fiscal Quarter of each Fiscal QuarterYear), unaudited balance sheets as a financial highlight report that contains sales and gross margins of the end of such month Borrower and the related statements of income and cash flows and same store sales performance metrics for such month and its Subsidiaries for the portion of the Fiscal Year then elapsedimmediately preceding month, on a consolidated basis for the Borrowers in form and their Subsidiariessubstance satisfactory to Agent, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and that is certified by a Senior Officer the principal financial officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsBorrower;
(iv) concurrently with delivery of financial statements under clauses (a)as soon as available, (b) and (c) above and (ii) at in any event within 60 days after the end of each monthly period for which Fiscal Year, drafts of the financial covenant pursuant to statements referenced in Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)9.1.3(i) above;
(evi) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 25 days prior to the beginning of after each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestmonth, a listing of each Loan Party’s all of Borrower's trade payables (including, without limitation, with respect to as of the Xxxxxxx Debt)last Business Day of such month, specifying the trade creditor name of and balance duedue each trade creditor, and a and, at Agent's request, monthly detailed trade payable aging;agings in form acceptable to Agent; and
(jvii) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that any Loan Party which Borrower has made generally available to its shareholders; shareholders and copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party which Borrower files with the Securities and Exchange Commission SEC or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) . Concurrently with the financial covenants and other terms delivery of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), financial statements described in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, clause (i) that all rent payments of the Borrowers this Section 9.1.3, Borrower shall deliver to Agent and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents Lenders a copy of the most recent actuarial statement required accountants' letter to Borrower's management that is prepared in connection with such financial statements and also shall cause to be submitted under §103(dprepared and shall deliver to Agent and Lenders a certificate of the aforesaid certified public accountants stating to Agent and Lenders that, based upon such accountants' audit of the Consolidated financial statements of Borrower and its Subsidiaries performed in connection with their examination of said financial statements, nothing came to their attention that caused them to believe that Borrower was not in compliance with Sections 9.2.16 or 9.3 hereof, or, if they are aware of such noncompliance, specifying the nature thereof. Concurrently with the delivery of the financial statements described in clauses (i) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISAthis Section 9.1.3, or in respect more frequently if requested by Agent or any Lender during any period that a Default or Event of a Multiemployer Plan under §4041ADefault exists, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required Borrower shall cause to be reported prepared and furnished to Agent and Lenders a Compliance Certificate executed by the PBGC under Section 4010 chief financial officer of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and Borrower. Promptly after the effective date of the Pension Protection Act of 2006sending or filing thereof, the Borrowers Borrower shall deliver also provide to the Agents Agent copies of any documents or notices described annual report to be filed in Sections 101(j), accordance with ERISA in connection with each Plan (k) or (l) of ERISA that other than the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor annual report of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(oMulti-Employer Plan) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports data and information (financial or and otherwise) as any Agent may request Agent, from time to time in connection with any time, may reasonably request, bearing upon or related to the Collateral or any Loan Party’s or the Subsidiary’s Borrower's and each of its Subsidiaries' financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies results of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsoperations.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and furnish cause to be prepared and to be furnished to Agent and Lenders the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless each Borrower’s certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders:, the financial covenants set forth in Section 10.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(ai) as soon as available, but and in any event not later than (i) within 105 days after the close of Borrowers’ 2005 Fiscal Year, and within 90 days after the close of each Fiscal YearYear thereafter, the unaudited consolidated audited balance sheet of the Borrowers Remington and their its Consolidated Subsidiaries as at the end of such Fiscal Year, Year and the related audited consolidated statement statements of incomeoperations, shareholder’s equity, changes in stockholders’ equity and cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to certified without material qualification by Grant Xxxxxxxx XXX or any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and but reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agentsaccountant concurs), and shall set setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year and an unaudited schedule detailing the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to eliminating entries that comprise the Agents.Consolidated financial statements;
(bii) as soon as available, but and in any event not later than 45 within 50 days after the end of each Fiscal Quarter of each Fiscal Year of hereafter, including the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each Borrowers’ Fiscal Year Year, the unaudited interim balance sheet of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets Remington and its Consolidated Subsidiaries as of at the end of such Fiscal Quarter and the related unaudited Consolidated statements of income operations, changes in stockholders’ equity and cash flows of Remington and same store sales performance metrics its Consolidated Subsidiaries for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for through the Borrowers and their Subsidiariesend of such Fiscal Quarter, setting forth forth, in the case of each such consolidated balance sheet and such consolidated statements of operations and cash flows in comparative form corresponding the figures for the preceding corresponding period of the previous Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and Year, certified by a Senior Officer the principal financial officer of the Borrowers each Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the Consolidated financial position and results of operations of Remington and its Consolidated Subsidiaries for such Fiscal Quarter and period, period subject only to normal changes from audit and year-end adjustments, along with, after adjustments and except that such statements need not contain notes and an unaudited schedule detailing the end of eliminating entries that comprise the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formConsolidated financial statements;
(ciii) as soon as available, but and in any event not later than within 30 days after the end of each month (includinghereafter, without limitationincluding the last month of Borrowers’ Fiscal Year, the third month unaudited interim balance sheet of each Fiscal Quarter), unaudited balance sheets Remington and its Consolidated Subsidiaries as of at the end of such month and the related unaudited consolidated statements of income operations, changes in stockholders’ equity and cash flows of Remington and same store sales performance metrics its Consolidated Subsidiaries for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for through the Borrowers and their Subsidiariesend of such month, setting forth forth, in the case of each such Consolidated balance sheet and such Consolidated statements of operations and cash flows in comparative form corresponding the figures for the preceding corresponding period of the previous Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and Year, certified by a Senior Officer the principal financial officer of the Borrowers each Borrower as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Consolidated Subsidiaries for such month and period, period subject only to normal changes from audit and year-end adjustmentsadjustments and except that such statements need not contain notes;
(iiv) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) abovepromptly, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowerswithin 15 days, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statementsas the case may be, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party which a Borrower files with the Securities and Exchange Commission or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(iv) promptly upon request of any Agent, furnish copies of any annual report to be filed in accordance with ERISA in connection with each Plan; and
(vi) such other data and information (financial and otherwise) as Agent, from time to time, may reasonably request, bearing upon or related to the Agents a copy Collateral or any Obligor’s financial condition or results of operations. Concurrently with the delivery of the most recent actuarial statement required to be submitted under §103(dfinancial statements described in clause (i) of ERISAthis Section 10.1.3, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to Agent and Lenders a certificate of the Agents copies independent certified public accountants reporting on such financial statements stating that in making the audit necessary therefor no knowledge was obtained of any documents Default or notices Event of Default, except as specified in such certificate. Concurrently with the delivery of the financial statements described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date clauses (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each of this Section 10.1.3, or more frequently if requested by Agent or any Lender (by telecopier during any period that a Default or electronic mail) Event of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e.Default exists, soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall cause to be required prepared and furnished to provide paper copies of the Agent and Lenders a Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Certificate executed by the Borrowers with any such request for delivery, and chief financial officer of each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsBorrower.
Appears in 1 contract
Financial and Other Information. Keep adequate records Provide Lender, and books cause Guarantor and Manager to provide to Lender, at its address set forth in Section 10.7 and at GMAC Commercial Mortgage Corporation, 0000 Xxxxxxx Xxxxxx, Suite 1460, Dallas, Texas 75225, the following financial statements and information on a continuing basis during the term of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLoan:
(a) as soon as available, but in any event not later than Within one hundred twenty (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15120) days after the end of each calendar month in each Fiscal Year fiscal year of Guarantor, consolidated financial statements for the BorrowersGuarantor and its subsidiaries, a certification by a Senior Officer of each including Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined prepared in accordance with GAAP generally accepted accounting principles consistently applied, audited by a nationally recognized accounting firm or independent certified public accounting firm acceptable to Lender, which statements shall include a balance sheet and a statement of Inventory held on income and expenses for the year then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender, upon its filing thereof, a consignment basiscopy of its Form 10 K as filed with the United States Securities and Exchange Commission.
(b) Within ninety (90) days after the end of each fiscal year of the Facility and Borrower (if different from the Facility), unaudited annual financial statements of the operations of the Facility, prepared by a financial officer of Borrower in accordance with generally accepted accounting principles consistently applied, and certified as true and correct in all material respects by a financial officer of Borrower, which statements shall include a balance sheet and a statement of income and expenses for the year then ended.
(ivc) describing Within forty-five (45) days after the long-term debt end of each fiscal month of the Borrowers Facility (if different from Borrower), unaudited interim financial statements of the Facility, certified as true and their Subsidiaries correct in all material respects by a financial officer of Borrower, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet, statement of income and expenses for the quarter then ended.
(d) Within forty-five (45) days after the end of each fiscal quarter of Borrower, unaudited interim financial statements of Borrower certified as true and correct in all material respects by a financial officer of Borrower or Managing Member, as the case may be, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet and statement of income and expenses for the quarter then ended.
(e) Within forty-five (45) days after the end of each fiscal quarter of Guarantor, unaudited interim financial statements of Guarantor, certified as true and correct in all material respects by a financial officer of Guarantor, subject to customary year end adjustments, which statements shall be prepared in accordance with general accounting principles consistently applied and shall include a balance sheet and a statement of income and expenses for the quarter then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender a copy of its Form 10 Q as filed by Guarantor with the United States Securities and Exchange Commission.
(f) Within forty-five (45) days after the end of each fiscal quarter of Borrower, a statement of the number of unit days available and the actual residents days incurred for such quarter, together with quarterly census information of the Facility as of the end of such calendar month;quarter in sufficient detail to show resident-mix (i.e., private, Medicare, Medicaid, and VA) on a daily average basis for such year through the end of such quarter, certified by a financial officer of Manager or Borrower to be true and correct. Such statements of the Facility shall be accompanied by the Summary of Financial Statements and Census Data attached hereto as Exhibit “D”.
(g) Within forty-five (45) days after the end of each of the first three fiscal quarters of Guarantor, and within ninety (90) days of the end of the fiscal year of Guarantor, Guarantor shall deliver to Lender the Fixed Charge Coverage Ratio and the Liquidity Amount together with all necessary support documentation with respect to such calculation as reasonably required by Lender, and certified by a financial officer of Guarantor
(h) If requested by Lender, within thirty (30) days after the filing deadline, as may be extended from time to time, copies of the federal income tax returns of Borrower and Guarantor and all state and local tax returns of Borrower, together with all supporting documentation and required schedules.
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation If and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Daysapplicable, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than within ten (10) days after filing or receipt, all Medicaid and/or Medicare cost reports and any Loan Partyamendments thereto filed with respect to the Facility and all responses, audit reports or inquiries with respect to such cost reports.
(j) If and to the extent applicable, within ten (10) days after receipt, copies of all licensure and certification survey reports and statements of deficiencies (with plans of correction attached thereto).
(k) If and to the extent applicable, within ten (10) days after receipt, a copy of the “Medicaid Rate Calculation Worksheet” (or the equivalent thereof) from the applicable agency.
(l) If and to the extent applicable, within ten (10) days of receipt, a statement of the number of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, “default rate” shall have the meaning ascribed to it in that certain applicable Medicare rate notification letter prepared in connection with any review or survey of the Facility.
(m) Within three (3) days of receipt, any and all notices (regardless of form) from any and all federal or state agencies, including any licensing and/or certifying agencies that the Facility license and/or the participation in Medicare, Medicaid or any other federal or state health care program, as applicable, of the Facility or any of its owners, officers, directors, agents or managing employees is being downgraded to a substandard category, revoked, suspended, or subjected to federal or state health care program exclusion, civil monetary penalty, criminal penalty, or false claims recovery, or that any such action is pending, threatened or being considered.
(n) If requested by Lender, evidence of payment by Borrower or Manager of any applicable provider bed taxes or similar taxes, which Borrower or Manager agrees to pay.
(o) If requested by Lender, within forty-five (45) days after the end of each of Borrower’s entry into any consignment arrangement fiscal quarters, and more frequently, if requested by Lender, an aged accounts payable report and an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of patient-mix (whether i.e., private, Medicare, Medicaid, and V.A.) both by the account age classifications of 30 days, 60 days, 90 days, 120 days and over 120 days. Any deficiency (identified above) shall be corrected by the date required by the licensure and certification agency, if such consignment arrangement is documented deficiency could adversely affect either (a) the right to continue participation in Medicare and Medicaid for existing residents or otherwise(b) in which such Loan Party acts the right to admit new Medicare and Medicaid residents, or (c) the right to continue operating the Facility as a consignee continuing care facility. If and to the extent applicable, Lender reserves the right to require that the annual financial statements of Borrower be audited and prepared by a nationally recognized accounting firm or independent certified public accountant acceptable to Lender, at their respective sole cost and expense, if (includingi) an Event of Default exists, without limitation(ii) if required by internal policy or by any investor in any securities backed in whole or in part by the Loan or any rating agency rating such securities, pursuant or (iii) if Lender has reasonable grounds to Section 4.1 believe that the unaudited financial statements do not accurately represent the financial condition of Borrower, Guarantor, or Manager as the Xxxxxxx Distribution Agreement)case may be. Lender further reserves the right to require such other financial information of Borrower, notify Guarantor, Manager and/or the Agents Facility, in writing of such consignment arrangementform and at such other times (including monthly or more frequently) as Lender shall reasonably deem necessary, specifying the consignor, the consignee, the term of the consignment arrangement, the goods and Borrower agrees promptly to provide or to cause to be consigned provided, such information to Lender. All financial statements must be in the form and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) detail as any Agent Lender may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreasonably request.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and furnish cause to be prepared and furnished to Lender the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such change is disclosed to Lender and is consistent with GAAP and, if required by Lender, the Lenders:financial covenants set forth in Section 10.3 are amended in a manner requested by Lender to take into account the effects of such change):
(ai) as soon as available, but and in any event not later than within ninety (i90) 90 days after the close of each Fiscal Year, the Year unaudited consolidated balance sheet sheets of the (A) Borrowers and (B) Borrowers and their Subsidiaries combined Subsidiaries, in each case as at of the end of such Fiscal Year, and the related consolidated statement unaudited statements of incomeincome and cash flow, shareholder’s equityin each case on a combined basis, cash flows setting forth in each case in comparative form the corresponding combined figures for the preceding Fiscal Year and same store sales performance metrics certified by the principal financial officer of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, Borrower Agent as prepared in accordance with GAAP and fairly presenting, in all material respects, the respective combined financial position and results of operations of (C) Borrowers and Anchor and (D) Borrowers and their combined Subsidiaries for such Fiscal Year and period, except for the absence of footnotesthat such statements need not contain notes;
(ii) promptly following Lender’s request, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges)as soon as available, and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(gany event within ninety (90) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year audited balance sheets of Parent and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their its Consolidated Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s shareholders’ equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearflow, which consolidated financial statements shall be audited and on a Consolidated basis, certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and Parent but reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), Lender and shall set setting forth in each case in comparative form the corresponding combined and combining (by business unit) figures for the preceding Fiscal Year;
(iii) as soon as available, and in any event within forty-five (45) days after the end of each month hereafter, including the last month of each Fiscal Year, unaudited balance sheets of Borrowers as of the end of such month and the related unaudited statements of income and cash flow for such month and for the portion of such Fiscal Year then elapsed, in each case on a combined basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the most recent projections provided pursuant principal financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting, in all material respects, the combined financial position and results of operations of Borrowers for such month and period subject only to Section 10.1.2(g) changes from audit, income tax adjustments and other information acceptable to the Agents.year-end adjustments and except that such statements need not contain notes;
(biv) as soon as available, but and in any event not later than 45 within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year of hereafter, including the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets of Borrowers and their combined Subsidiaries as of the end of such Fiscal Quarter and the related unaudited statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the such Fiscal Year then elapsed, in each case on a consolidated basis for the Borrowers and their Subsidiariescombined basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the principal financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting presenting, in all material respects, the combined financial position and results of operations of Borrowers and their combined Subsidiaries for such Fiscal Quarter and periodperiod subject only to changes from audit, subject to normal income tax adjustments and year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion adjustments and analysis in connection with the foregoing, provided except that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formsuch statements need not contain notes;
(cv) as soon as available, but in any event not later than 30 fifteen (15) days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other during which Average Availability was less than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request$3,000,000, a listing of all of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to as of the Xxxxxxx Debt)last Business Day of such month, specifying the trade creditor name of and balance duedue each trade creditor, and a and, at Lender’s request, monthly detailed trade payable agingagings in form acceptable to Lender;
(jvi) except to the extent publicly available (including pursuant to filings with the Court), promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that which any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that which any Loan Party Borrower files with the Securities and Exchange Commission SEC or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party an Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kvii) compliance certificates (or such other evidence promptly following Lender’s request, copies of compliance) any annual report to be filed in accordance with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), ERISA in connection with each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder)Plan;
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rviii) such other reports data and information (financial or otherwise) as any Agent may request Lender, from time to time in connection with any time, may reasonably request, bearing upon or related to the Collateral or any Loan PartyBorrower’s or the Subsidiary’s financial condition or results of operations;
(ix) after the first full week of the Chapter 11 Cases, and solely in the event the combined cash and Cash Equivalents of Borrowers falls below $10,000,000, on or before the close of business on each Wednesday during the Interim Period, an updated Interim DIP Budget as of the Friday preceding such Wednesday and a report showing actual results compared to those shown on the Interim DIP Budget for the preceding week;
(x) promptly after delivery thereof to the U.S. Bankruptcy Administrator or any examiner appointed in the Chapter 11 Case, a copy of each report delivered to the U.S. Bankruptcy Administrator or such examiner; and
(xi) promptly after any Borrower’s obtaining knowledge thereof:
(I) any pleading filed with the Court seeking relief from the automatic stay or conversion or dismissal of the Chapter 11 Cases; (II) any offer or other expression of interest from any Person to purchase any material part of the Collateral (other than sales of Inventory in the ordinary course of business); and (III) any proposed sale of any of the Collateral (including with such notice copies of drafts of all instruments and agreements applicable to any such sale), which shall specify the identity of the proposed purchaser, the terms of the proposed sale and the expected date of closing, subject to Court approval; and
(B) Copies of all pleadings, motions, reports, applications and other papers filed by any Borrower with the Court as well as copies of all billing and expense statements received from any Professional Person. Documents required Borrowers shall include counsel for Lender on any “Special Notice List” or other similar list of parties to be delivered pursuant to Sections 10.1.2(aserved with papers in the Chapter 11 Cases. Concurrently with the delivery of the financial statements described in clauses (i), (bii), (iii) or and (jiv) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documentsof this Section 10.1.3, or provides more frequently if requested by Lender during any period that a link thereto on such Borrower’s website on the Internet at the website address indicated in writing Default or Event of Default exists, Borrowers shall cause to the Agents be prepared and the Lenders furnished to Lender a Compliance Certificate executed by the chief financial officer of Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Post Petition Loan and Security Agreement (Enpro Industries, Inc)
Financial and Other Information. Keep Each Loan Party shall, and shall cause each of its Subsidiaries to, keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP in all material respects reflecting all financial transactions; and the Borrower shall furnish to the Agents and the Lenders:
Administrative Agent (for further distribution to each Lender): (a) as soon as available, but and in any event not later than within ninety (i90) 90 days after the close end of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equityoperations, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries stockholders’ equity for such Fiscal Year, along with on a management’s discussion Consolidated basis for the Borrower and analysis in connection with the foregoingits Subsidiaries, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial Consolidated statements shall be audited and certified (without qualification as to scope, any “going concern” or similar items) like qualification or exception or any qualification or exception as to the scope of such audit), by a firm of any independent certified public accountants of nationally recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Borrower, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
Year; (b) as soon as available, but and in any event not later than 45 within forty-five (45) days after the end of each the first three (3) Fiscal Quarter Quarters of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income income, operations and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated Consolidated basis for the Borrowers Borrower and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Responsible Officer of the Borrowers Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
footnotes; (c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with the delivery of financial statements under clauses (a), Sections 6.01(a) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Administrative Agent while an Event of Default exists, (i) a Compliance Certificate executed by a Senior Responsible Officer of each Borrower the Borrower, and (with such certification to be ii) a report of accounts receivable sold in such Person’s capacity as a Senior Officer reliance on clause (x) of such the definition of “Permitted Asset Disposition” and the proceeds received by the Borrower and not its Subsidiaries in such Person’s individual capacity);
connection therewith, in each case, on a monthly basis for the period then ended; (ed) concurrently with the delivery of financial statements under clause (a) above, and otherwise promptly after the request by any AgentSection 6.01(a), copies of any detailed audit reports or all management letters (if any) and other material reports submitted to the board of directors (Borrower or the audit committee of the board of directors) of any Loan Party Subsidiary by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of such financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time madestatements; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.105 13892670v7
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoingconsolidating bases for Holdings, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, Borrower and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 (i) within 30 days after the end of each Fiscal Quarter (but within 45 days after the last Fiscal Quarter in a Fiscal Year) and (ii) at all times during a Dominion Period, within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter or month and the related statements of income and cash flows and same store sales performance metrics flow for such month or Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Holdings, Borrower and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer or Treasurer of the Borrowers Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month or Fiscal Quarter, as applicable, and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with the delivery of the financial statements as of the end of each month under clause (b) above, a reconciliation of Eligible Inventory and Eligible Accounts from the Aggregate Borrowing Base then in effect to the general ledger or other source document to such financial statements;
(d) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer or Treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Borrower;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of Borrower and/or any Loan Party Borrowing Base Guarantor by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 45 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrower’s consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s reasonable request, a listing of Borrower’s and each Loan PartyBorrowing Base Guarantor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Borrower or any Loan Party Borrowing Base Guarantor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Borrower or any Loan Party Borrowing Base Guarantor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower or any Borrowing Base Guarantor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (Borrower or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthBorrowing Base Guarantor;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereoffiled in connection with each Plan; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a)Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 10.1.2 may be satisfied by furnishing Borrower’s (or (jany direct or indirect parent thereof, as applicable) (to the extent any such documents are included in materials otherwise Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents Commission or any Lender that requests such Borrower successor thereto to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan and Security Agreement (Ak Steel Holding Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year Year, projections (in Microsoft Excel) of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets Availability and availability under Borrowing Base for the credit facilities (includingnext Fiscal Year, without limitationmonth by month, projections of Revolver Excess Availability) and for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been previously delivered on the date (i) on which the applicable Borrower posts such documentsClosing Date, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower Borrowers shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower not be obligated to deliver such paper copies until a written request projections pursuant to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.this Section 10.1.2
Appears in 1 contract
Samples: Loan, Security and Guarantee Agreement (Applied Optoelectronics, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and The Loan Parties will furnish to the Agents and the LendersAgent:
(a) as soon as available, but available and in any event not later than on or before the date that is ninety (90) days after the end of each of WS’ fiscal years, (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers WS and their its Subsidiaries as at the end of such Fiscal Yearfiscal year, and the related consolidated statement of income, shareholder’s equity, income and consolidated statement of cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Yearfiscal year, along setting forth comparative consolidated figures for the preceding fiscal year, and certified by independent certified public accountants of recognized national standing whose opinion shall not be qualified (or contain an explanatory paragraph) as to the scope of audit or as to the status of WS or any other Loan Party as a going concern (other than solely with respect to, or resulting solely from an upcoming maturity date or prospective non-compliance with any financial covenants under any agreement, indenture or other document governing any Indebtedness), together with a copy of management’s discussion and analysis of the financial condition and results of operations of WS and its Subsidiaries for such fiscal year, as compared to the previous fiscal year, and (ii) at the request of Agent, unaudited consolidating balance sheets as at the end of such fiscal year and the related unaudited consolidating statements of income and consolidating statements of Capital Expenditures for such fiscal year, in connection each case, of WS and its Subsidiaries to the extent available under, and consistent with, WS’ internal reporting framework;
(b) as soon as available and in any event on or before the date that is forty-five (45) days after the end of each quarterly accounting period (other than the fourth fiscal quarter of any fiscal year) of WS, the consolidated balance sheet of WS and its Subsidiaries, in each case as at the end of each of such quarterly accounting periods and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the foregoinglast day of such quarterly period, and the related consolidated statement of cash flows for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the related period in the prior fiscal year, all of which statements shall be certified by a Senior Officer of WS as presenting fairly in all material respects the consolidated financial position of WS and its Subsidiaries at the respective dates of said statements and the consolidated results of operations for the respective periods covered thereby, subject to changes resulting from audit and normal year-end audit adjustments, together with a copy of management’s discussion and analysis of the financial condition and results of operations of WS and its Subsidiaries for such fiscal quarter, as compared to the previous fiscal quarter; provided that solely with respect to the quarterly accounting period ending on June 30, 2020, the Loan Parties will also furnish to the Agent unaudited quarterly financial statements with respect to MMI and its Subsidiaries of a similar nature as described above in this clause (b);
(c) not more than ninety (90) days after the commencement of each fiscal year of WS, a budget of WS and its Subsidiaries in reasonable detail and, other than for such fiscal year on a quarterly basis consistent in scope with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections financial statements provided pursuant to Section 10.1.2(g9.1.1(a), setting forth the material assumptions upon which such budgets are based;
(d) at the time of the delivery of the financial statements provided for in Sections 9.1.1(a) and other information acceptable (b), a Compliance Certificate of a Senior Officer of the Administrative Borrower to the Agents effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) in the case of financial statements provided pursuant to Section 9.1.1(a) or (b), the Consolidated Fixed Charge Coverage Ratio (and accompanying calculations, including any pro forma adjustments used in making such calculations and not previously reflected in prior Compliance Certificates and, in reasonable detail, all relevant financial information in support of such calculations) as at the end of such fiscal year or fiscal quarter, as the case may be, together with a reconciliation between the calculation of such ratios and the financial statements so delivered (including the exclusion of Unrestricted Subsidiaries) from the consolidated financial condition and results of WS and its Subsidiaries and (ii) a specification of any change in the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements identity of the Borrowers Restricted Subsidiaries and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Unrestricted Subsidiaries as at the end of such Fiscal Yearfiscal year or fiscal quarter, as the case may be, from the Restricted Subsidiaries and the related consolidated statement of incomeUnrestricted Subsidiaries, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearrespectively, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable provided to the Agents (it being acknowledged that KPMG LLP shall be acceptable to Lenders on the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and Closing Date or the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to fiscal year or fiscal quarter, as the Agents.case may be;
(be) as soon as available, available but in any event not later than 45 within twenty-five (25) days after of the end of each Fiscal Quarter calendar month, a Borrowing Base Certificate (which, subject to in Section 2.6, shall be calculated in a consistent manner with the most recently delivered Borrowing Base Certificate) covering each Borrowing Base, provided, that (i) on and after the Closing Date until the earlier of each Fiscal Year (x) January 31, 2021 and (y) the date of receipt by Agent of the Borrowers (including, without limitationNew WS Appraisals and Field Exams, the fourth Fiscal Quarter Administrative Borrower shall deliver an Existing Borrowing Base Certificate in lieu of a Borrowing Base Certificate each Fiscal Year of the Borrowers for which the deadline shall time a Borrowing Base Certificate is required to be 75 daysdelivered during such period), unaudited balance sheets (ii) the Administrative Borrower will be required to furnish a Borrowing Base Certificate on or before the Wednesday following each calendar week as of the end of such Fiscal Quarter calendar week during which a Borrowing Base Test Event is continuing, and (iii) the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedAdministrative Borrower may, on at its option, furnish a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided Borrowing Base Certificate more frequently than otherwise required pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
this clause (e) concurrently with delivery so long as such frequency of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themreporting is maintained for at least four weeks;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, as soon as available but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowersevent, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities within twenty-five (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1525) days after the end of each calendar month month, in each Fiscal Year case, as of the Borrowers, period then ended:
(1) a certification by a Senior Officer of each Borrower, schedule in form and substance reasonably satisfactory to Agent identifying the Agentslocations (whether owned or leased) of Rental Equipment, Electronic Test Equipment, other Equipment and Inventory of each Loan Party and (i2) that all rent payments a roll-forward of the Borrowers Rental Equipment fleet and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries Electronic Test Equipment as of the end of such calendar month;
(ii) a worksheet of calculations prepared by the Administrative Borrower to determine Eligible Accounts, Eligible Container Inventory Held For Sale, Eligible Machinery and Equipment, Eligible Raw Materials Inventory, Eligible Rental Equipment, Eligible Electronic Test Equipment and Eligible Work-In-Process Container Inventory, such worksheets detailing the Accounts, Rental Equipment, Electronic Test Equipment, other Equipment and Inventory excluded from Eligible Accounts, Eligible Container Inventory Held For Sale, Eligible Machinery and Equipment, Eligible Raw Materials Inventory, Eligible Rental Equipment, Eligible Electronic Test Equipment and Eligible Work-In-Process Container Inventory and the reason for such exclusion; and
(iii) a summary of Accounts agings for each Loan Party as of the end of the preceding month, specifying each Account’s Account Debtor name and address (if requested);
(g) promptly after a Senior Officer of any Loan Party obtains knowledge thereof, notice of (i) promptly upon request the occurrence of any Agentevent that constitutes a Default or Event of Default, furnish which notice shall specify the nature thereof, the period of existence thereof and what action the applicable Loan Party proposes to take with respect thereto (which notice, to the Agents extent captioned a copy “Notice of Default,” shall be promptly forwarded by Agent to the most recent actuarial statement required to be submitted under §103(dLenders) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents litigation or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of proceeding pending against any Loan Party or any Subsidiary, including but not limited Restricted Subsidiary that would reasonably be expected to any items delivered pursuant to the Revolving Credit Agreementresult in a Material Adverse Effect;
(oh) promptly upon request thereforfiling thereof, all information pertaining copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC or any analogous Governmental Authority in any relevant jurisdiction by Parent, Holdings, WS or any Restricted Subsidiary (other than amendments to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
registration statement (p) to the extent such registration statement, in the form it becomes effective, is delivered to Agent), exhibits to any registration statement and, if applicable, any registration statements on Form S-8) and copies of all financial statements, proxy statements, notices and reports that Revolver Excess Availability is less than $5,000,000 for five Parent, Holdings, WS or any Restricted Subsidiary shall send to the holders of any debt of Holdings, WS and/or any Restricted Subsidiary in their capacity as such holders (5) consecutive Business Days, at in each case to the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, extent not theretofore delivered to Agent pursuant to Section 4.1 of the Xxxxxxx Distribution this Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements ) and, at the request of any Agentwith reasonable promptness, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as Agent on its own behalf or on behalf of any Lender (acting through Agent) may reasonably request in writing from time to time;
(i) (i) not later than fourteen (14) days prior to any change in the jurisdiction of organization of any Loan Party (and, for purposes of the PPSA, the location of its chief executive office) (or such later date as Agent may agree in its reasonable discretion) for purposes of the Uniform Commercial Code or PPSA and (ii) reasonably promptly but not later than forty-five (45) days following the occurrence of any change referred to in subclauses (w) through (z) below (or such later period of time as Agent may agree in its reasonable discretion), written notice of any change (w) in the legal name of any Loan Party, (x) in the location of any Loan Party for purposes of the Uniform Commercial Code or PPSA (for purposes of the PPSA, at least fourteen (14) days’ prior written notice, or such shorter period to which Agent may agree, of any change in location of such Loan Party to a jurisdiction in which no PPSA filing has been previously made or no Lien has otherwise been previously perfected by or in respect of such Loan Party in favor of Agent), (y) in the identity or type of organization of any Loan Party or (z) in the Federal Taxpayer Identification Number (or the equivalent identifier in any other jurisdiction including tax file numbers) or organizational or corporate identification number of any Loan Party, provided, that, notwithstanding the foregoing, with respect to any Loan Party incorporated in Canada or any Loan Party who has granted a security interest over any Property which is subject to the terms of the PPSA, at least fourteen (14) days’ prior written notice of any change in the legal name of any such Loan Party must be provided (subject to any extensions of time as Agent may agree in its reasonable discretion). The Loan Parties shall also promptly provide Agent with certified Organizational Documents reflecting any of the changes described in the first sentence of this clause (k);
(A) upon the written request of Agent, copies of (i) any annual information report (including all actuarial reports and other schedules and attachments thereto) required to be filed with a Governmental Authority in connection with each US Employee Plan, any Foreign Plan that is required by Applicable Law to be funded or any Canadian Pension Plan and (ii) any notice, demand, inquiry or subpoena received from a Governmental Authority in connection with (x) any US Employee Plan concerning a Reportable Event, or (y) any Canadian Pension Plan concerning a Termination Event which would reasonably be expected to result in a Material Adverse Effect or any other event described in clauses (ii) or (iii) of Section 10.1.7, and (B) upon written request of Agent, such other documents relating to any US Employee Plan or Canadian Pension Plan as may be reasonably requested by Agent;
(k) promptly following receipt, a copy of any warning notice from the Pensions Regulator in which it proposes to take action which may result in the issuance of a Contribution Notice or Financial Support Direction in respect of any UK DB Pension Plan; and
(l) at the time of the delivery of the financial statements provided for in Sections 9.1.1(a) and (b), a list of the Permitted Stand-Alone Capital Lease Transactions in effect as of the end of the applicable fiscal year or fiscal quarter. Notwithstanding the foregoing, the obligations in clauses (a) and (b) above may be satisfied with respect to financial information of WS and its Subsidiaries by furnishing (A) the applicable financial statements of Holdings or any other Parent Entity or (B) the Form 10-K or 10-Q, as applicable, of WS, Holdings or any other Parent Entity, as applicable, filed with the SEC; provided, that, with respect to each of subclauses (A) and (B) of this paragraph, such information shall be accompanied by a reasonably detailed description of the differences between the information relating to Holdings or such Parent Entity, as applicable, on the one hand, and the information relating to WS and its Restricted Subsidiaries on a standalone basis, on the other hand and, if such differences are material, the Agent may request from time to time in connection with delivery of a reconciliation. Notwithstanding the foregoing, and any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents documentation required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) this Section 9.1.1 may be delivered electronically and (other than in the case of documents required to be delivered under clauses (e) and (f), above) if so delivered, shall be deemed to have been be delivered on the earliest date on which (i) on which the applicable Administrative Borrower (or a Parent Entity) posts such documents, or provides a link thereto thereto, on such Borrower’s its website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (iii) such documents are posted on behalf of the Borrowers on IntraLinks/IntraAgency or another website, if any, to which each Lender and Agent have access (whether a commercial, third-party website or whether sponsored by Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at xxx.xxx.xxx; provided, that (A) the Administrative Borrower shall shall, at the request of Agent, continue to deliver paper copies (which delivery may be by electronic transmission) of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (iiB) such the Administrative Borrower shall notify the Agents and each Lender (which notification may be by telecopier facsimile or electronic mailtransmission) Agent of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documentson any website described in this paragraph. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery to it or of paper copies of such documents from Agent and maintaining its copies of such documents.
Appears in 1 contract
Samples: Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders' equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year Year; provided that the furnishing of Parent's annual report on Form 10-K for such year, as filed with the Securities and Exchange Commission, will satisfy the most recent projections provided pursuant Parent's obligation under this Section 10.1.2(a) with respect to Section 10.1.2(g) and other information acceptable such year except with respect to the Agents.requirement that such financial statements be reported on without a "going concern" or like qualification or exception (except as expressly permitted above), or a qualification arising out of the scope of the audit;
(b) (i) as soon as available, but and in any event not later than within 30 days after the end of each month, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (including, solely during the Fiscal Year ending 2021 and to the extent reasonably practicable, corresponding profit and loss figures for the prior Fiscal Year as if the US Footwear Acquisition had been consummated on a pro forma basis), preceding year interim figures and their current year projections, and certified by the chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes; and (ii) as soon as available, and in any event within 45 days after the end of each the last month in a Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedQuarter, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (including, solely during the Fiscal Year ending 2021, corresponding profit and loss figures for the most recent projections provided pursuant to Section 10.1.2(g) prior Fiscal Year as if the US Footwear Acquisition had been consummated on a pro forma basis), preceding year interim figures and their current year projections, and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes, along with, after the end of the second Fiscal Quarter of each Fiscal Year, together with a management’s corresponding discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the results from management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and above (cother than with respect to financial statements delivered under clause (b)(i) above and (ii) at with respect to a month that is the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedlast month in a Fiscal Quarter), or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer chief financial officer of each Borrower Agent, and (ii) concurrently with delivery of financial statements under clause (b)(ii) above, any updates to Schedules 8.5, 8.6.1, 9.1.4, 9.1.11, 9.1.12, 9.1.15 and 9.1.20 as required therein to reflect changes resulting from transactions permitted under the Loan Documents (for the avoidance of doubt, no Obligor shall be required to update any such certification Schedules (other than Schedule 8.5 and Schedule 8.6.1) on an earlier date pursuant to any other Sections (other than Section 8.5 and Section 8.6.1) of this Agreement and any representation regarding such Schedules shall be deemed accurate when made where such Schedule was timely updated in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacityaccordance with this provision);
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent's consolidated balance sheets, results of operations, profit and loss, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a flow month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s 's reasonable request, a listing of each Loan Party’s Borrower's trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 10.1.2(g) shall be deemed delivered for purposes of this Agreement when Obligors notify Agent that such information is posted to the website of any of the Obligors or the website of the Securities and Exchange Commission;
(kh) compliance certificates promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(or such other evidence i) promptly, and in any event not later than 5 Business Days after each board of compliance) with directors meeting of Parent, copies of the materials related to the financial covenants performance and other outlook of Parent and its Subsidiaries provided by management to the directors for such board meeting (excluding any items (i) subject to attorney-client privilege, (ii) which relate to proposed financing transactions which contain competitive information or present a conflict of interest with Agent or (iii) the disclosure of which would breach a third party’s confidentiality agreement which prohibits dissemination of such information to Agent or Lenders pursuant to the terms thereof);
(j) solely during the period commencing on the First Amendment Effective Date and ending on the later of (i) <June 30>December 31, 2023 and (ii) the Revolving Loan Documents (or any documents relating to renewalsdate on which Average Availability during the immediately preceding 4 consecutive week period is greater than $17,500,000, refinancings on the second Business Day of each week during such period, a key performance indicator report of Parent and extensions its Subsidiaries and a liquidity report of the Debt incurred thereunder)Parent and its Subsidiaries, in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end last Business Day of such calendar month;
(i) promptly upon request of any Agent, furnish the immediately preceding week and in form substantially similar to the Agents a copy of the most recent actuarial statement required applicable report previously delivered to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s Obligor's or the Subsidiary’s ' financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and Except as otherwise expressly ------------------------------- provided for in this Agreement, Borrower shall keep proper books of record and account with respect to its business activities, in which proper full and true entries are will be made of all dealings and transactions of or in relation to the business and affairs of Borrower, in accordance with GAAP reflecting all financial transactions; generally accepted accounting principles consistently applied, and furnish Borrower shall cause to be furnished to FBS Ag Credit, from time to time and in a form acceptable to FBS Ag Credit, such information as FBS Ag Credit may reasonably request, including without limitation, the Agents and the Lendersfollowing:
(a) as soon as available, but practicable and in any event not later than within one hundred and twenty (i120) 90 days after the close end of fiscal year 1997 and within ninety (90) days of each Fiscal Yearfiscal year of Borrower thereafter, audited statements of income, retained earnings and changes in the unaudited consolidated financial condition of Borrower for each year, and a balance sheet of the Borrowers and their Subsidiaries Borrower for such year, setting forth in each case, in comparative form, corresponding figures as at of the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics preceding fiscal year together with a copy of the Borrowers management letter, all in reasonable detail and their Subsidiaries for satisfactory in scope to FBS Ag Credit and certified to Borrower by such Fiscal Yearindependent public accountants as are selected by Borrower and satisfactory to FBS Ag Credit, along with a management’s discussion and analysis in connection with the foregoing, which statements whose opinion shall be in reasonable detail and, other than with respect scope and substance satisfactory to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.FBS Ag Credit;
(b) as soon as available, but practicable and in any event not later than 45 within thirty (30) days after the end of each Fiscal Quarter monthly accounting period in each fiscal year of each Fiscal Year Borrower:
(i) statements of income and retained earnings of Borrower for such monthly period and for the period from the beginning of the Borrowers (includingthen current fiscal year to the end of such monthly period, without limitation, the fourth Fiscal Quarter and a balance sheet of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets Borrower as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiariesmonthly period, setting forth in each case, in comparative form corresponding form, figures for the corresponding periods in the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) fiscal year, all in reasonable detail and certified as accurate by a Senior Officer the chief financial officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodBorrower, subject to changes resulting from normal year-year end adjustments, along with(ii) copies of all operating statements for such month prepared by Borrower for its internal use, after the end including without limitation, statements of cash flow, purchases and sales of Inventory and other goods, and (iii) a compliance certificate of the second Fiscal Quarter chief financial officer of each Fiscal Year, a management’s discussion and analysis Borrower in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;form attached as Exhibit 7A; ----------
(c) as soon as available, but practicable and in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month monthly accounting period in each Fiscal Year fiscal year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, :
(i) that all rent payments Borrowing Base Certificate for Borrower computed as of the Borrowers and their Subsidiaries have been madelast day of such month, signed by the chief financial officer of Borrower; (ii) that no lease defaults exist for such periodan aged trial balance of all Accounts indicating which Accounts are thirty (30), sixty (60) and ninety (90) days past the original invoice date of the original invoice related thereto and listing the names of all Account Debtors, (iii) as to the amount a listing of outstanding consignment Borrower's accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and indicating which accounts payable are more than thirty (iv30) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthdays past due;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwised) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to above, soon as practicable and in any event shall have no responsibility to monitor compliance within ninety (90) days of each fiscal year of Borrower month by month budget for the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsthen current fiscal year.
Appears in 1 contract
Samples: Loan and Security Agreement (Horizon Organic Holding Corp)
Financial and Other Information. Keep adequate records and Except as otherwise expressly provided for in this Agreement, Borrower shall keep proper books of record and account with respect to its business activities, in which proper full and true entries are will be made of all dealings and transactions of or in relation to the business and affairs of Borrower, in accordance with GAAP reflecting all financial transactions; consistently applied, and furnish Borrower shall cause to be furnished to the Agents Agent (with copies to the other Lenders), from time to time and in a form acceptable- to the LendersAgent, such information as the Agent may reasonably request, including without limitation, the following:
(a) as soon as available, but practicable and in any event not later than within ninety (i90) 90 days after the close end of each Fiscal Yearfiscal year of Borrower, the unaudited consolidated audited statements of income, retained earnings and cash flow of Borrower for each year, and a balance sheet of the Borrowers and their Subsidiaries Borrower for such year, setting forth in each case, in comparative form, corresponding figures as at of the end of the preceding fiscal year, all in reasonable detail and satisfactory in scope to the Agent and certified to Borrower by such Fiscal Yearindependent public accountants as are selected by Borrower and satisfactory to the Agent, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements whose opinion shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, scope and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable substance satisfactory to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but practicable and in any event not later than 45 within thirty (30) days after the end of each Fiscal Quarter monthly accounting period in each fiscal year of each Fiscal Year Borrower: (i) statements of income of Borrower for such monthly period and for the period from the beginning of the Borrowers (includingthen current fiscal year to the end of such monthly period, without limitation, the fourth Fiscal Quarter and a balance sheet of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets Borrower as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiariesmonthly period, setting forth in each case, in comparative form corresponding form, figures for the corresponding periods in the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) fiscal year, all in reasonable detail and certified as accurate by a Senior Officer the chief financial officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodBorrower, subject to changes resulting from normal year-year end adjustments, along with(ii) copies of all operating statements for such month prepared by Borrower for its internal use, after including without limitation, purchases and sales of Inventory and other Goods, (iii) as requested, an aged trial balance of all Accounts indicating which Accounts are thirty (30), sixty (60) and ninety (90) days past the end original invoice date of the second Fiscal Quarter original invoice related thereto and listing the names of each Fiscal Yearall Account Debtors, and (iv) a managementlisting of Borrower’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formaccounts payable indicating which accounts payable are more than thirty (30) days past due;
(c) as soon as available, but practicable and in any event not later than 30 days after the end of each month within thirty (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1530) days after the end of each calendar month quarterly accounting period in each Fiscal Year fiscal year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to at the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan same time as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material monthly financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items statements are delivered pursuant to the Revolving Credit Agreementpreceding Subsection (b), a compliance certificate of the chief financial officer of Borrower in substantially the form attached as Exhibit 6A (“Compliance Certificate”);
(od) promptly upon request thereforas soon as practicable and in any event within thirty (30) days after the end of each monthly accounting period in each fiscal year of Borrower, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order a Borrowing Base Certificate for such Lender to comply with the provisions Borrower computed as of the Patriot Actlast day of such month, signed by the chief financial officer of Borrower;
(pe) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but as soon as practicable and in any event no later than ten within thirty (1030) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) the end of each monthly accounting period in which such Loan Party acts each fiscal year of Borrower, a position report in the form attached as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofExhibit 6B; and
(r) such other reports and information (financial or otherwisef) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to above, soon as practicable and in any event shall have no responsibility within ninety (90) days before the beginning of each fiscal year of the Borrower, an operating budget and business plan for such year in form and detail reasonably acceptable to monitor compliance by the Borrowers with any such request for delivery, Agent and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsthe Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Green Plains Renewable Energy, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP in all material respects reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidated basis for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a any Big Four firm of independent certified public accountants of recognized standing selected by the Borrowers and or such other firm reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 within 30 days after the end of each Fiscal Quarter of each Month (but within 45 days after the last Fiscal Year of the Borrowers (including, without limitation, the fourth Month in a Fiscal Quarter of each and 60 days after the last Fiscal Year of the Borrowers for which the deadline shall be 75 daysMonth in a Fiscal Year), unaudited balance sheets as of the end of such Fiscal Quarter Month and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter Month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers Company as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter Month and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default exists, (i) a Compliance Certificate executed by a Senior Officer of each Borrower the Company and (ii) a calculation of the Indenture Formula Amount.
(d) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)financial statements;
(e) concurrently with delivery of financial statements under clause (ab) above, at the end of any Fiscal Quarter, a written report satisfactory in form and otherwise promptly after the request scope to Agent, as to all Hedging Agreements entered into by any Borrower or Guarantor, including, without limitation, detailed calculations with respect to the conversion values of all currency exchange Hedging Agreements and such other items as Agent, copies of any detailed audit reports or management letters submitted in its sole discretion, may from time to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;time request.
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets Domestic Availability and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) UK Availability for the next three Fiscal YearsYear, month by month and for the following Fiscal Years (through 2012), year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hg) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any promptly following Agent’s request, a summary listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance duepayables, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents any annual report to be filed in connection with any Pension Plan, and materials of a material financial nature promptly following Agent’s request, after the sending or otherwise provided to any other creditor filing thereof, copies of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any filed in connection with each other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers Plan or other modifications thereofForeign Plan; and
(rj) such other reports and information (financial or otherwise, including, without limitation, consolidating balance sheets, related statements of income, cash flow and shareholder’s equity, but excluding any information subject to the attorney-client privilege or other confidentiality arrangements with third parties) as any Agent may promptly following Agent’s request therefor from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents Promptly following retention of accountants for their annual audit, Borrowers shall send a letter to the accountants, with a copy to Agent and Lenders, notifying the accountants that one of the purposes for retaining their services and obtaining audited financial statements is for use by Agent and Lenders. Agent is authorized to send such notice if Borrowers fail to do so for any reason. Subject to the next succeeding sentence, information delivered pursuant to this Section 10.1.2 to Agent may be made available by Agent to Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 10.1.2 may also be delivered by electronic communication pursuant to procedures approved by Agent pursuant to Section 15.3 hereto. Information required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) this Section 5.01 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commissionnot made available as set forth above) may be delivered electronically and if so delivered, shall be deemed to have been delivered to Agent on the date on which such information has been posted on (i) on which the applicable Borrower posts such documents, or provides a link thereto on such BorrowerCompany’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; xxxx://xxx.xxxxx.xxx or (ii) are made available via XXXXX, or any successor system of the SEC, on the Company’s Annual Report on Form 10-K, Quarterly Report on Form 10-Q, or 8-K, as applicable. Information required to be delivered pursuant to this Section 10.1.2 shall be in a format which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: is suitable for transmission. Unless (i) such Borrower shall deliver paper copies of such documents to the Agents expressly marked by Borrowers as “PUBLIC” or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates Company’s public filings with the SEC, any notice or other communication delivered pursuant to the Agents and the Lenders. Except for such Compliance Certificatesthis Section 10.1.2, no Agent shall have any obligation or otherwise pursuant to request the delivery or to maintain copies of the documents referred to abovethis Agreement, and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery deemed to it or maintaining its copies of such documentscontain material non-public information.
Appears in 1 contract
Samples: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating basis for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Holdings and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Holdings and acceptable to the Agents Agent (it being acknowledged provided that KPMG LLP shall be any of PricewaterhouseCoopers, KPMG, Deloitte Touche Tohmatsu or Ernst & Young are acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on consolidated and, other than the statement of cash flows, on a consolidated consolidating basis for the Borrowers Holdings and their its Subsidiaries, in the case of the consolidating statements setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer, treasurer or controller of the Borrowers Holdings as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer, treasurer or controller of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Holdings;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (Holdings or the audit committee of the board of directors) of any Loan Party Borrower by independent their accountants in connection with such financial statements;
(e) not later than the accounts or books first day of any Loan Party or any Subsidiaryeach Fiscal Year, or any audit projections of any Holdings’ consolidated balance sheet, results of themoperations, cash flows and Aggregate Availability for such Fiscal Year, month by month;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan PartyHoldings’ and Borrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies notice (which notice may be sent by posting to an electronic platform to which Agent and Lenders have access and Agent and Lenders receive, in a reasonably satisfactory manner, prompt notice of the posting of any documents on such platform) of any proxy statements, financial statements or reports that any Loan Party Holdings has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Holdings or Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies notice of any press releases or other statements made available by a Loan Party Holdings or Borrower to the public concerning material changes to or developments in the business of such Loan PartyHoldings or Borrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each U.S. Plan or other modifications thereofForeign Plan; and
(ri) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyHoldings’ Borrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a)Simultaneously with retaining accountants for their annual audit, (b) or (j) (Holdings and Borrower shall send a letter to the extent any such documents are included in materials otherwise filed accountants, with a copy to Agent and Lenders, notifying the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender accountants that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) one of the posting of any such documents primary purposes for retaining their services and provide to the Agents obtaining audited financial statements is for use by Agent and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except Agent is authorized to send such notice if Holdings or Borrower fail to do so for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreason.
Appears in 1 contract
Samples: Loan and Security Agreement (Multi Fineline Electronix Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and The Loan Parties will furnish to the Agents and the LendersAgent:
(a) as soon as available, but available and in any event not later than (i) on or before the date that is 90 days after the close end of each Fiscal Yearof Arrow Bidco’s fiscal years, (i) the unaudited consolidated balance sheet of the Borrowers Arrow Bidco and their its Subsidiaries as at the end of such Fiscal Yearfiscal year, and the related consolidated statement of income, shareholder’s equity, income and consolidated statement of cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Yearfiscal year, along setting forth comparative consolidated figures for the preceding fiscal year, and certified by independent certified public accountants of recognized national standing whose opinion shall not be qualified (or contain an explanatory paragraph) as to the scope of audit or as to the status of Arrow Bidco or any other Loan Party as a going concern (other than solely with respect to, or resulting solely from an upcoming maturity date under any Facility or prospective non-compliance with any financial covenants under any agreement, indenture or other document governing any Indebtedness), together with a copy of management’s discussion and analysis in connection with of the foregoingfinancial condition and results of operations of Arrow Bidco and its Subsidiaries for such fiscal year, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable as compared to the Agents previous fiscal year, and (ii) solely upon the earlier Agent’s request, unaudited consolidating balance sheets of (x) 120 days after the close of each Fiscal Year Arrow Bidco and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their its Subsidiaries as at the end of such Fiscal Yearfiscal year, and the related unaudited consolidating statements of income and consolidating statements of Capital Expenditures for such fiscal year;
(b) as soon as available and in any event on or before the date that is 45 days after the end of each quarterly accounting period thereafter (other than the fourth fiscal quarter of any fiscal year) of Arrow Bidco, the consolidated balance sheet of Arrow Bidco and its Subsidiaries, in each case as at the end of each of such quarterly accounting periods and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and the related consolidated statement of income, shareholder’s equity and cash flows for such quarterly accounting period and for the elapsed portion of the Borrowers fiscal year ended with the last day of such quarterly period, and their setting forth comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the related period in the prior fiscal year, all of which shall be certified by a Senior Officer of Arrow Bidco as presenting fairly in all material respects the consolidated financial position of Arrow Bidco and its Subsidiaries at the respective dates of said statements and the consolidated results of operations for the respective periods covered thereby, subject to changes resulting from audit and normal year-end audit adjustments, together with a copy of management’s discussion and analysis of the financial condition and results of operations of Arrow Bidco and its Subsidiaries for such Fiscal Yearfiscal quarter, which consolidated as compared to the previous fiscal quarter;
(c) not more than 90 days after the commencement of each fiscal year of Arrow Bidco, a budget of Arrow Bidco and its Subsidiaries in reasonable detail for such fiscal year on a quarterly basis consistent in scope with the financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g10.1.1(a), setting forth the material assumptions upon which such budgets are based, and which shall include geographic zone summaries presented in a manner consistent with the projections delivered to the Agent prior to the Closing Date;
(d) at the time of the delivery of the financial statements provided for in Sections 10.1.1(a) and other information acceptable (b), a Compliance Certificate of a Senior Officer of the Administrative Borrower to the Agents.effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) in the case of financial statements provided pursuant to Section 10.1.1(a) or (b), the Consolidated Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio (and accompanying calculations, including any pro forma adjustments used in making such calculations and not previously reflected in prior Compliance Certificates and, in reasonable detail, all relevant financial information in support of such calculations) as at the end of such fiscal year or fiscal quarter, as the case may be, together with a reconciliation between the calculation of such ratios and the financial statements so delivered (including the exclusion of Unrestricted Subsidiaries and any Non-Recourse Subsidiary) from the consolidated financial condition and results of Arrow Bidco and its Subsidiaries and supported by consolidating financial statements for such Unrestricted Subsidiaries and Non-Recourse Subsidiaries, (ii) a specification of any change in the identity of the Restricted Subsidiaries, Unrestricted Subsidiaries and Non-Recourse Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries, Unrestricted Subsidiaries and Non-Recourse Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be, (iii) [Reserved], (iv) [Reserved] and (v) a true and accurate copy of the principal agreements governing any financing transaction for Rental Equipment under which any Non-Recourse Subsidiary is the purchaser, lessee or obligor, together with any schedules or other documentation identifying the Rental Equipment that is subject to such transaction;
(be) as soon as available, available but in any event not later than 45 within 25 days of the end of each full calendar month, a Borrowing Base Certificate (which shall be calculated in a consistent manner with the most recently delivered Borrowing Base Certificate) covering the Borrowers and supporting information in connection therewith, provided that the Borrowers will be required to furnish a Borrowing Base Certificate and supporting information in connection therewith within four days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets calendar week as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on calendar week during which a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 Borrowing Base Test Event is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themcontinuing;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, as soon as available but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowersevent, draft projections of the Loan Parties’ consolidated balance sheetsunless another time period is specified below, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) 25 days after the end of each calendar month in each Fiscal Year of (or, if requested by the BorrowersAgent, on a certification by weekly basis if a Senior Officer of each Borrower, in form Borrowing Base Test Event has occurred and substance reasonably satisfactory is continuing (other than with regard to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, clause (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined below)), in accordance with GAAP of Inventory held on a consignment basiseach case, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.period then ended:
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenders:
(a) as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers Guaranty is deleted in its entirety and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection replaced with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP following: Within one hundred twenty (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g120) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingGuarantor's fiscal year, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on Guarantor will provide Lender with a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal fiscal year-end adjustmentsfinancial statement of CVC Holdings, along withInc. (which includes Borrower) audited by an independent certified public accountant approved by Lender. Guarantor will also furnish consolidated quarterly financial Statements of CVC Holdings, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
Inc. (cincluding Borrower) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
CVC Holdings, Inc. within forty-five (g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1545) days after the end of each calendar month in each Fiscal Year fiscal quarter of CVC Holdings, Inc. Where applicable, such financial statements shall include a profit and loss statement, balance sheet and rent roll for the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries Premises. All statements shall have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined prepared in accordance with GAAP generally accepted accounting principles to present fairly the results of Inventory held on a consignment basisGuarantor's operations and cash flows and its financial position in conformity with such principles, and (iv) describing to be correct, complete and in accordance with Guarantor's records. Promptly upon the long-term debt request of the Borrowers Lender from time to time, Guarantor shall supply all additional information requested and their Subsidiaries as permit Lender's officers, employees, accountants, attorneys and other agents to (a) visit and inspect the Premises; (b) examine, audit, copy and extract from Guarantor's records; and (c) discuss Guarantor's or affiliates' business operations, assets, affairs, or condition (financial or other) with its responsible officers and independent accountants. EXHIBIT A Meeting of the end Board of such calendar month;
(i) promptly upon request Directors of any AgentCVC Holdings, furnish Inc.. February 19, 1997 The Meeting was called to the Agents a copy order at 9:00 A.M. by Xxxxxxxxx Xxxxxxx, Chairman of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachmentsBoard, in respect of each Guaranteed Pension Plan and Canadian Planthe Company's Fremont, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan California offices. Xx. Xxxxxxx served as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date Chairman of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA Meeting and requested that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, Xxxxxx Xxxxxx serve as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor Secretary. All of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies Directors of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any SubsidiaryBoard were in attendance, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request thereforXx. Xxxxxxx, all information pertaining to the Loan Parties Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxx, Seiya Miyanishi, Xxxxxx Xxxxx and their Subsidiaries reasonably requested by any Lender Xx. Xxxxxx. Xxxxxx XxXxxxxxx was also in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, attendance at the request of Agentthe Board. The Chairman asked that the minutes for the prior meeting be approved and they were unanimously adopted without revision. The Chairman then confirmed the upcoming meeting schedule: Wednesday, a thirteen May 28, 0000 Xxxxxxxxxxx, Xxxxxxxxx (13with Compensation Committee Meeting) week cash flow report;
Tuesday, August 26, 1997 Rochester, New York (qwith Audit Committee Meeting) promptly but in any event no later than ten Friday, December 12, 0000 Xxxxxxx, Xxxxxxxxxx (10with Audit Committee Meeting) days after any Loan Party’s entry into any consignment arrangement Tentative Dates for 1998 Meetings Wednesday, March 4, 0000 Xxxxxxx, Xxxxxxxxxx (whether such consignment arrangement is documented or otherwisewith Audit Committee Meeting) in which such Loan Party acts as a consignee Tuesday, May 21, 1998 (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods Location to be consigned determined) (with Compensation Committee Meeting) Thursday, August 20, 1998 Rochester, New York (with Audit Committee Meeting) Thursday, December 11, 0000 Xxxxxxx, Xxxxxxxxxx (with Compensation Committee Meeting) The Board approved the grants of qualified options to Xxxxxx Xxxxxx and any other material terms of such arrangements and, Xxxxxxx Xxxxxx as set forth on Exhibit A at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the current applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders fair market value exercise price provided by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsEmpire Valuation Consultants.
Appears in 1 contract
Samples: Continuing Guaranty (CVC Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP in all material respects reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, a “going concern” or similar itemsscope of audit qualification (other than with respect to an upcoming maturity date of Debt that is scheduled to occur within one year from the time such audit is delivered)) by a Xxxxx & Young LLP or by another firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingfirst three Fiscal Quarters of Parent, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), an unaudited balance sheets sheet as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and Year, certified by a Senior Financial Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) at any time Total Excess Availability is less than the greater of (x) 20% of the Total Borrowing Base and (y) $40,000,000, as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, other than the third last month of each Fiscal QuarterQuarter but including the last month of each Fiscal Year), an unaudited balance sheets sheet as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Financial Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsyearend adjustments and the absence of footnotes;
(id) concurrently with the delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Financial Officer;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (Parent or the audit committee of the board of directors) of any Loan Party its Restricted Subsidiaries by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery not later than March 31st of each Fiscal Year, and containing substantially the same types of financial statements under clause (b) above, and otherwise promptly after information contained in the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules projections delivered pursuant to this Section and/or identifying 6.1(l), the annual business plan for Parent and its Restricted Subsidiaries for such changesFiscal Year and for each month in such Fiscal Year;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s reasonable request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Parent or any Loan Party of its Restricted Subsidiaries has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Loan Party of its Restricted Subsidiaries files with the Securities and Exchange Commission SEC or any other Governmental Authority, or any similar securities exchangeregulatory authority; and copies of any press releases or other statements made available by a Loan Party Parent or any of its Restricted Subsidiaries to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthbusiness;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents any annual report to be filed in connection with each Pension Plan, Foreign Plan (that is a defined benefit pension plan) and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit AgreementUK Pension Plan;
(oj) promptly upon request thereforfollowing receipt, all information pertaining a copy of any notice from the Pensions Regulator in which it proposes to take action which may result in the Loan Parties and their Subsidiaries reasonably requested by issuance of a Contribution Notice or Financial Support Direction in respect of any Lender in order for such Lender to comply with the provisions of the Patriot ActUK Pension Plan;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyParent’s or the any Restricted Subsidiary’s financial condition or business; and
(l) concurrently with the delivery of the Compliance Certificate required pursuant to Section 10.1.2(d) (or more frequently in Borrowers’ reasonable judgment), supplements, revisions or updates containing the information required by Schedules 7.3, 8.4, 8.5.1, 9.1.4 or 9.1.19 to reflect changes to such schedules since the date of the most recent Compliance Certificate (or, prior to the delivery of the first Compliance Certificate, since the Closing Date); provided, that (i) no such supplements, revisions or updates to any such Schedule(s) shall be deemed to have cured any breach of warranty or misrepresentation occurring prior to the delivery of such revision or update by reason of the inaccuracy or incompleteness of any such Schedule(s) at the time such warranty or representation previously was made or deemed to be made and (ii) such Schedule(s) may only be updated to the extent that such related actions disclosed are otherwise not prohibited by this Agreement and other Loan Documents prior to such Schedule being supplemented, revised or updated. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commissionh) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower Parent or HYG posts such documents, or provides a link thereto on such BorrowerParent’s or HYG’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower AgentInternet; or (ii) on which such documents are posted on such BorrowerParent’s or HYG’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower Parent shall deliver paper copies of such documents to the Agents Agent or any Lender that requests such Borrower upon its request to Parent to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower Parent or HYG shall notify the Agents Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and and, upon request by Agent, provide to the Agents and the Lenders Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Parent or HYG with any such request by a Lender 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
Samples: Loan, Security and Guaranty Agreement (Hyster-Yale Materials Handling, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 105 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion on consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than its Subsidiaries (and on consolidating basis with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, balance sheets and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year), which consolidated financial statements shall be audited and certified (without qualification as to scope, any “going concern” or similar itemslike qualification or exception or any qualification or exception as to the scope of such audit or with respect to the absence of any material misstatement) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Obligors and reasonably acceptable to the Agents Agent (it being acknowledged that KPMG LLP shall be any “big four” firm is acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 within 60 days after the end of each the first three Fiscal Quarter Quarters of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their Subsidiariesits Subsidiaries (and on consolidating basis with respect to balance sheets and statements of income), setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer or chief accounting officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after quarterly adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after within 5 Business Days from the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by a Senior Officer the chief financial officer or chief accounting officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 60 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s and its Subsidiaries consolidated balance sheets, results of operations, operations and cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) flow for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s 's request, a listing of each Loan Party’s Obligor's invoiced trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed invoiced trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Parent has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Parent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each casepromptly, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewalsAgent’s request, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each Plan or other modifications thereofCanadian Pension Plan; and
(ri) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s Obligor's financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a10.1.2 (a), (b) or (jg) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i1) on which the applicable Borrower Parent posts such documents, or provides a link thereto on such BorrowerParent’s website on the Internet at the website address indicated as set forth in writing to the Agents and the Lenders by the Borrower Agent; or Closing Date Letter, (ii2) on which such documents are posted on a publicly available website maintained by or on behalf of the Securities and Exchange Commission for access to documents filed in the EDGAR daxxxxxe (the “EDGAR Wexxxxx”), or (3) on which such Borrowerdocuments are posted on Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such that except with respect to documents to posted on the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower EDGAR Wexxxxx, Parent shall notify the Agents and each Lender Agent (by telecopier or electronic mail) of the posting of any such documents and and, if requested by Agent, provide to the Agents and the Lenders Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along on consolidated and consolidating bases for Obligors and Subsidiaries, together with a management’s discussion all supporting schedules and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents Agent (it being hereby acknowledged by Agent that KPMG BPM LLP shall be are acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of (but within 60 days after the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each in a Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Obligors and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Holdings as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Quarter (other than the last Fiscal Quarter of a Fiscal Year) and 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Holdings as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Holdings;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts such financial statements, and promptly upon receipt thereof, copies of each report to Obligors (or books of any Loan Party or any Subsidiary, or any audit of any of them) concerning accounting practices and systems and any final comment letter submitted by such accountants to management in connection with an annual audit;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesObligors’ consolidated and consolidating balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, Year on a month Fiscal Quarter by month Fiscal Quarter basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor (if applicable) and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authoritygovernmental authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthObligor;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials any annual report to be filed in connection with each Plan or any employee benefit plan or similar employee benefit arrangement maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States or is mandated by a material financial nature or otherwise provided to any government other creditor than the United States for employees of any Loan Party Obligor or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(oj) promptly upon as soon as available, and in any event within 30 days after the initial funding of any Borrower Advance (or, in the case of a Borrower Royalty Receivable Advance, the purchase of the related Borrower Royalty Receivable), a copy of Borrowers’ internally prepared written underwriting report with respect to such Borrower Advance along with such related information as Agent may request therefor, all information pertaining in its reasonable discretion with respect to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order underwriting rationale for such Lender to comply with the provisions of the Patriot ActBorrower Advance;
(pk) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Daysas soon as available, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but and in any event no later than ten within thirty (1030) days after any Loan Party’s entry into any consignment arrangement receipt by Borrowers, copies of all reports prepared for Borrowers by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant it being hereby acknowledged by Agent that BPM LLP are acceptable to Section 4.1 of the Xxxxxxx Distribution AgreementAgent), notify evaluating the Agents in writing performance of such consignment arrangement, specifying all Borrower Advances outstanding during the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofprior Fiscal Quarter; and
(rl) such other reports and information (financial or otherwise) as any Agent may request from time to time in its reasonable credit judgment in connection with any Collateral or any Loan PartyBorrower’s Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent, except with respect to such information that is available to the Agents and public by disclosures required by the Lenders:
SEC: (a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year: (i) Titan’s Financial Statements prepared, the unaudited on a consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearbasis, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower Agent and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent and (ii) Obligors’ Financial Statements for the Agents.
Fiscal Year ended which shall not be audited, shall be prepared on a consolidating basis, and shall contain a reconciliation to the audited Titan’s Financial Statements. For the avoidance of doubt, annual audited Financial Statements shall only be provided for Titan International and its Subsidiaries and no audited financial statements shall be provided for the Obligors, but rather, as to the latter only unaudited financial statements prepared on a consolidating basis with a reconciliation to the audited Titan’s Financial Statements; (b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of Quarter, Titan’s Financial Statements and Obligors’ Financial Statements unaudited, in each Fiscal Year of the Borrowers (includingcase, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers former and their Subsidiaries, setting forth in comparative form corresponding figures a consolidating basis for the preceding Fiscal Year and latter (with an appropriate reconciliation to the most recent projections provided pursuant to Section 10.1.2(gunaudited Titan’s Financial Statements) and certified certified, in each instance, by a Senior Officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
footnotes; (c) during any Trigger Period (Monthly Financial Reporting), as soon as available, but and in any event not no later than the 15th day (or, if such date is not a Business Day, the next succeeding Business Day) of the calendar month that begins at least 30 days after the end commencement of the Trigger Period (Monthly Financial Reporting) and continuing on the 15th day (or, if such date is not a Business Day, the next succeeding Business Day) of each succeeding calendar month until the Trigger Period (includingMonthly Financial Reporting) terminates, without limitationTitan’s Financial Statements and Obligors’ Financial Statements unaudited, the third month of in each Fiscal Quarter)case, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers former and their Subsidiaries, setting forth in comparative form corresponding figures a consolidating basis for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower latter (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.appropriate reconciliation
Appears in 1 contract
Samples: Credit and Security Agreement (Titan International Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedelapsed together with a reconciliation of the accounts receivables to the balance sheets, on a consolidated basis for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent, as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)fiscal month, unaudited balance sheets as of the end of such fiscal month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsedelapsed together with a reconciliation of the accounts receivables to the balance sheets, on a consolidated basis for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the treasurer, controller, or chief financial officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsParent;
(id) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by (i) the chief financial officer of Parent with respect to Fiscal Quarter end and Fiscal Year end financial statements, and (ii) the treasurer, controller, or chief financial officer of Parent with respect to the monthly financial statements; provided, however, in connection with a Senior Officer Compliance Certificate delivered in connection with the monthly financial statements, the relevant officer of each Borrower (with Parent is only required to certify the accuracy of the representations and warranties of the Obligors contained in the Loan Documents in any such certification to be in such Person’s capacity as a Senior Officer month during which the sum of such Borrower and not in such Person’s individual capacity)Availability plus Qualified Cash is less than $100,000,000;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit all management letters, to the extent available, and other material reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Parent by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s consolidated balance sheets, results of operations, cash flowflow and Availability for the next Fiscal Year, budgets month by month and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hg) concurrently with delivery by the 15th day of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requesteach month, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Parent or any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by Parent or a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (Parent or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;; and
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each ERISA Plan or other modifications thereofForeign Plan; and
(rj) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyParent’s, its Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made a manner to allow financial statements to be prepared in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to Agent and Lenders (subject to the Agents and the Lenders:limitations on distribution of any such information to Public Lenders as described in Section 14.3.3):
(a) as soon as available, but and in any event not later than within one hundred twenty (i120) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Intermediate Holdco and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a Xxxx Xxxxx, LLCPricewaterhouseCoopers or any firm of independent certified public accountants of recognized standing selected by the Borrowers Intermediate Holdco and reasonably acceptable to the Agents Agent (it being acknowledged agreed that KPMG LLP shall for the Fiscal Year ending July 31, 2017, only the post-acquisition period will be acceptable required to the Agentsbe audited), and shall set forth forth, beginning with the Fiscal Year ending July 31, 2018 in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) Prior to the occurrence of a Qualified IPO, as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers within thirty (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g30) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, other than the third month end of each a Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Intermediate Holdco and their its Subsidiaries, setting forth in comparative form form, beginning with the Fiscal Year ending July 31, 2017, corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales and noting any purchase accounting adjustments) in order to present financial performance metrics)and measure financial covenants at normalized levels, and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) as soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Intermediate Holdco and its Subsidiaries, setting forth in comparative form, corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (and noting any purchase accounting adjustments) in order to present financial performance and measure financial covenants at normalized levels, and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (b) and clause (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existson a quarterly basis, a Compliance Certificate executed by a Senior Officer the chief financial officer or treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hi) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestBorrowing Base Certificate required pursuant to Section 8.1, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, and a detailed Accounts aging, all in form reasonably satisfactory to Agent and (ii) the report set forth in Section 8.2.1 within the prescribed time period set forth therein;
(jg) concurrently with the delivery of the Borrowing Base Certificate required pursuant to Section 8.1, a copy of an Inventory report to the extent required pursuant to Section 8.3.1;
(h) Prior to the occurrence of a Qualified IPO, not later than thirty (30) days after the end of each Fiscal Year, the operating budget and cash flow projections of Borrower Agent and its Subsidiaries for such Fiscal Year, month by month;
(i) promptly after the sending or filing thereof, (i) copies of any proxy statements, financial statements or material reports that any Loan Party Obligordirect or indirect parent of Intermediate Holdco has made generally available to its shareholders; (ii) copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligordirect or indirect parent of Intermediate Holdco files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and (provided no delivery of the Form 8K will be required provided the Borrower Agent has notified the Agent of such filing); and (iii) copies of any press releases or other statements made available by a Loan Party any Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor;
(kj) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each Plan or other modifications thereofForeign Plan; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyObligor’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 100 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion Year of Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower Representative and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to filed with the Agents.Securities and Exchange Commission, and the consolidating balance sheets as of the end of such Fiscal Year and related statements of income for such Fiscal Year of Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and Foreign Subsidiaries;
(b) as soon as available, but and in any event not later than 45 within 50 days after the end of each Fiscal Quarter (but within 75 days after the last Fiscal Quarter in a Fiscal Year) and so long as the compliance with the Fixed Charge Coverage is being tested in accordance with Section 10.3, within 40 days after the end of each Fiscal Year of Month (but within 75 days after the Borrowers last Fiscal Month in a Fiscal Year) the following: (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), i) unaudited consolidated balance sheets as of the end of such Fiscal Quarter or Fiscal Month, as applicable, and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter or Fiscal Month, as applicable, and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and (ii) consolidating balance sheets as of the most recent projections provided pursuant to Section 10.1.2(g) end of such Fiscal Quarter or Fiscal Month, as applicable, and the related statements of income for such portion of the Fiscal Year then elapsed for Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and Foreign Subsidiaries and certified by a Senior Officer either the chief financial officer or the Vice Present, Finance and Controller of the Borrowers Borrower Representative as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter or Fiscal Month, as applicable, and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each the Borrower Representative;
(d) to the extent available and upon Agent’s request, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)financial statements;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly not later than 50 days after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable agingall in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers each statement or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents report required to be delivered pursuant to Sections 10.1.2(a), this clause (bg) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower Representative posts such documents, or provides a link thereto document on such Borrowerthe Borrower Representative’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are www.kellwood.cxx, xx xxxx xxxx document is posted on such Borrowerthe Securities and Exchange Commission’s behalf website at www.sec.gov (txx “XXX Xxxsite”) or on an Internet website established by Agent with Intralinks, Inc. or intranet website, if any, to which other similarly available electronic media (each Lender and of the Agents have access (whether a commercial, third-party website or whether sponsored by any Agentforegoing an “Informational Website”); provided that: provided, further, that (i) such the Borrower Representative shall deliver paper copies of all such documents to the Agents Agent or any Lender that requests such the Borrower Representative to deliver such paper copies (without impairment of the effectiveness of any document previously delivered in electronic media form) until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents Agent and each Lender (shall be notified by telecopier or electronic mail) mail of the applicable Informational Website and of the posting of any each such documents document; it being understood and provide to the Agents and the Lenders by electronic mail electronic versions agreed that (i.e., soft copiesx) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any no obligation to request the delivery or to maintain copies of the documents referred to aboveabove in this clause (g), and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower Representative with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsdocuments and (y) Borrowers shall be responsible for (other than with respect to the SEC Website) and shall incur all risks associated with (including with respect to the SEC Website) the security and confidentiality of the Informational Websites and its information posted thereon;
(h) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Obligor’s financial condition or business.
Appears in 1 contract
Financial and Other Information. Keep adequate records Provide Lender, and books cause Guarantor and Manager to provide to Lender, at its address set forth in Section 8.7 and at GMAC Commercial Mortgage Corporation, 8333 Douglas Avenue, Suite 1460, Dallas, Texas 75225, the following xxxxxxxxx xxxxxxxxxx xxx information on a continuing basis during the term of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLoan:
(a) as soon as available, but in any event not later than Within one hundred twenty (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15120) days after the end of each calendar month in each Fiscal Year fiscal year of the BorrowersGuarantor, a certification by a Senior Officer of each Borrowerconsolidated financial statements for the Guarantor and its subsidiaries, in form and substance reasonably satisfactory to the Agentsincluding Manager, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month Borrower and the book value determined Facility (if different from the Borrower), prepared in accordance with GAAP generally accepted accounting principles consistently applied, audited by a nationally recognized accounting firm or independent certified public accounting firm acceptable to the Lender, which statements shall include a balance sheet and a statement of Inventory held on income and expenses for the year then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender, upon its filing thereof, a consignment basis, copy of its Form 10 K as filed with the United States Securities and Exchange Commission.
(ivb) describing Within forty-five (45) days after the long-term debt end of each fiscal quarter of the Borrowers Facility (if different from Borrower), unaudited interim financial statements of the Facility, certified as true and their Subsidiaries correct in all material respects by a financial officer of Borrower, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet, statement of income and expenses for the quarter then ended.
(c) Within forty-five (45) days after the end of each fiscal quarter of Borrower, unaudited interim financial statements of Borrower, certified as true and correct in all material respects by a financial officer of Borrower, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently and shall include a balance sheet and statement of income and expenses for the quarter then ended.
(d) Within forty-five (45) days after the end of each fiscal quarter of Guarantor, unaudited interim financial statements of Guarantor, certified as true and correct in all material respects by a financial officer of Guarantor, subject to customary year end adjustments, which statements shall be prepared in accordance with general accounting principles consistently applied and shall include a balance sheet and a statement of income and expenses for the quarter then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender a copy of its Form 10 Q as filed by Guarantor with the United States Securities and Exchange Commission.
(e) Within forty-five (45) days after the end of each quarter of Manager, unaudited interim financial statements of Manager, certified as true and correct in all material respects by a financial officer of Manager, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet and a statement of income and expenses for the quarter then ended.
(f) Within forty-five (45) days after the end of each fiscal quarter of Borrower, a statement of the number of unit days available and the actual residents days incurred for such quarter, together with quarterly census information of the Facility as of the end of such calendar month;quarter in sufficient detail to show resident-mix (i.e., private, Medicare, Medicaid, and VA) on a daily average basis for such year through the end of such quarter, certified by a financial officer of Manager or Borrower to be true and correct. Such statements of the Facility shall be accompanied by the Summary of Financial Statements and Census Data attached hereto as Exhibit "D".
(ig) promptly upon request of any AgentIf requested by Lender, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(dwithin thirty (30) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and days after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Planfiling deadline, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices may be extended from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereoftime to time, copies of the federal income tax returns of Borrower and Guarantor and all documents state and materials local tax returns of a material financial nature or otherwise provided to any other creditor of any Loan Party or any SubsidiaryBorrower, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;together with all supporting documentation and required schedules.
(oh) promptly upon request therefor, all information pertaining to the Loan Parties If and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Daysapplicable, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than within ten (10) days after filing or receipt, all Medicaid and/or Medicare cost reports and any Loan Party’s entry into any consignment arrangement amendments thereto filed with respect to the Facility and all responses, audit reports or inquiries with respect to such cost reports.
(whether such consignment arrangement is documented or otherwisei) in which such Loan Party acts as If and to the extent applicable, within ten (10) days after receipt, copies of all licensure and certification survey reports and statements of deficiencies (with plans of correction attached thereto).
(j) If and to the extent applicable, within ten (10) days after receipt, a consignee (including, without limitation, pursuant to Section 4.1 copy of the Xxxxxxx Distribution Agreement)"Medicaid Rate Calculation Worksheet" (or the equivalent thereof) from the applicable agency.
(k) If and to the extent applicable, notify the Agents in writing within ten (10) days of such consignment arrangementreceipt, specifying the consignor, the consignee, the term a statement of the consignment arrangementnumber of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, "default rate" shall have the goods meaning ascribed to it in that certain applicable Medicare rate notification letter prepared in connection with any review or survey of the Facility.
(l) Within three (3) days of receipt, any and all notices (regardless of form) from any and all federal or state agencies, including any licensing and/or certifying agencies that the Facility license and/or the participation in Medicare, Medicaid or any other federal or state health care program, as applicable, of the Facility or any of its owners, officers, directors, agents or managing employees is being downgraded to a substandard category, revoked, suspended, or subjected to federal or state health care program exclusion, civil monetary penalty, criminal penalty, or false claims recovery, or that any such action is pending, threatened or being considered.
(m) If requested by Lender, evidence of payment by Borrower or Manager of any applicable provider bed taxes or similar taxes, which Borrower or Manager agrees to pay.
(n) Within forty-five (45) days after the end of each of Borrower's fiscal quarter, and more frequently, if requested by Lender, an aged accounts payable report and an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of patient-mix (i.e., private, Medicare, Medicaid, and V.A.) both by the account age classifications of 30 days, 60 days, 90 days, 120 days and over 120 days.
(o) Any deficiency (identified above) shall be corrected by the date required by the licensure and certification agency, if such deficiency could adversely affect either (a) the right to continue participation in Medicare and Medicaid for existing residents or (b) the right to admit new Medicare and Medicaid residents, or (c) the right to continue operating the Facility as an independent living facility.
(p) If and to the extent applicable, Lender reserves the right to require that the annual financial statements of Borrower be audited and prepared by a nationally recognized accounting firm or independent certified public accountant acceptable to Lender, at their respective sole cost and expense, if (i) an Event of Default exists, (ii) if required by internal policy or by any investor in any securities backed in whole or in part by the Loan or any rating agency rating such securities, (iii) if Lender has reasonable grounds to believe that the unaudited financial statements do not accurately represent the financial condition of Borrower, Guarantor or Manager as the case may be, or (iv) the financial results of the Borrower and/or Manager (as the case may be) are no longer consolidated into Guarantor's audited financial statements.
(q) Lender further reserves the right to require such other financial information of Borrower, Guarantor, Manager and/or the Facility, in such form and at such other times (including monthly or more frequently) as Lender shall reasonably deem necessary, and Borrower agrees promptly to provide or to cause to be consigned provided, such information to Lender. All financial statements must be in the form and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) detail as any Agent Lender may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreasonably request.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, Parent and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scopequalification) by, “going concern” or similar items) by from a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-year end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-year end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), (b) ), and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Parent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Parent by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s consolidated balance sheets, results of operations, cash flow, budgets Colonial Availability and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) ACM-TCM Availability for the next three Fiscal Yearsremaining term of the facilities, year by year, and for such Fiscal Year, on a month by month basismonth;
(g) as soon as available, such draft projections to be made in good faith based on reasonable assumptions of within forty-five (45) days after the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning end of each Fiscal Year Quarter, a static pool analysis and a static pool repossession report that identifies the number of units repossessed in during such Fiscal Quarter in a form satisfactory to the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinAgent;
(h) concurrently with delivery as soon as available, within forty-five (45) days after the end of financial statements under clause (b) aboveeach Fiscal Quarter, a cash collection report setting forth for each month during such Fiscal Quarter in a listing of any new stores, offices or places of business of form satisfactory to the Loan Parties since the delivery of the last such reportAgent;
(i) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Parent has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Parent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Parent to the public concerning material changes to or developments in the business of such Loan PartyParent and its Subsidiaries;
(k) compliance certificates (promptly after the sending or such other evidence filing thereof, copies of compliance) any annual report to be filed in connection with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder)Plan;
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or Parent’s, any Loan Party’s of its Subsidiaries’ or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), ; and
(b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (im) on which the applicable Borrower posts such documents, each anniversary date hereof or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing other date as reasonably required by Agent, from time to the Agents time, a written certification to Agent and the Lenders by that the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) form of the posting of any such documents and provide to Vehicle Contracts comply with the Agents and the Lenders by electronic mail electronic versions (i.e.Vehicle Contract Compliance Requirements, soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers which certification shall be required in form and content satisfactory to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAgent.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, Parent and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified signed (without a qualified opinion and without any other qualification as except any qualification related to scopedeficiency or weakness in internal controls for the audits covering the periods ended December 31, “going concern” 2010 and December 31, 2011 only and to the extent that such deficiency or similar itemsweakness would not, based on Agent’s determination, impair the Collateral, Collateral reporting or Borrower’s ability to repay any Obligations) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent; the Agents.foregoing requirement may be satisfied by Parent notifying Agent no later than the date provided above that it has provided a direct link to such reports and other information on Parent’s or another Person’s website on the Internet;
(b) as soon as available, but and in any event not later than 45 within 40 days after the end of each Fiscal Quarter of each Fiscal Year of (but within 75 days after the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each in a Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of footnotes; the second Fiscal Quarter of each Fiscal Year, foregoing requirement may be satisfied by Parent notifying Agent no later than the date provided above that it has provided a managementdirect link to such reports and other information on Parent’s discussion and analysis in connection with or another Person’s website on the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formInternet;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, but within 45 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and and, if Liquidity was less than $50,000,000 at any time during such month, cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate (which shall include a calculation of the Fixed Charge Coverage Ratio) executed by the chief financial officer of Parent; [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);confidential treatment request.
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (Borrower or the audit committee of the board of directors) of any Loan Party Parent by independent their respective accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 10 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning commencement of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Parent has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Parent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Parent to the public concerning material changes to or developments in the business of Parent; the foregoing requirement may be satisfied by Parent promptly notifying Agent that it has provided a direct link to such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants reports and other terms of information on Parent’s or another Person’s website on the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthInternet;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyParent, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or ; and
(j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to aboveas soon as available, and in any event shall have no responsibility to monitor compliance by within 120 days after the Borrowers close of each Fiscal Year, financial statements for each Guarantor, in form and substance consistent with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies the audited financial statements of such documentsParent.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Trident Microsystems Inc)
Financial and Other Information. Keep adequate records Deliver to Bank in form and books detail satisfactory to Bank, and in such number of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenderscopies as Bank may request:
(a) as soon as available, but in any event not later than Within one hundred twenty (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15120) days after the end of each calendar month in each Fiscal Year fiscal year, the audited consolidated financial statements of the Borrowers, a certification by a Senior Officer of each Borrower, in form Borrower and substance reasonably satisfactory to the Agents, its Subsidiaries for such year together with (i) an unqualified opinion of a "Big Six" CPA firm, or another nationally recognized CPA firm, which is acceptable to Bank, that all rent payments the financial statements present fairly the financial position of Borrower and its Subsidiaries for the Borrowers and their Subsidiaries have been madeperiod indicated in conformity with GAAP applied on a basis consistent with prior years, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISACPA management letter, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver a Compliance Certificate which includes all computations made by the accounting firm to determine the Agents compliance by Borrower and each Material Subsidiary with all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to financial responsibility requirements imposed by any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request Governmental Authority having jurisdiction over Borrower and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereofeach Material Subsidiary;
(nb) promptly upon delivery thereofWithin forty-five (45) days after the end of each quarterly accounting period, copies the consolidated financial statements of Borrower and its Subsidiaries for such period prepared by Borrower together with a Compliance Certificate executed by a Responsible Officer certifying the compliance by Borrower and the Subsidiaries with all documents financial responsibility requirements of Governmental Authorities having jurisdiction over Borrower and materials each Material Subsidiary;
(c) Within forty-five (45) days after the end of each quarterly accounting period, a material Compliance Certificate in the form of Exhibit A;
(d) Within forty-five (45) days after the end of each quarterly accounting period, financial nature or otherwise provided to any other creditor statements of any Loan Party or any each Material Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreementa Compliance Certificate executed by a Responsible Officer certifying that each such Material Subsidiary is in compliance with all financial responsibility requirements of Governmental Authorities having jurisdiction over Borrower and each Material Subsidiary;
(oe) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than Within ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 the date of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed filing with the Securities and Exchange Commission, copies of Borrower's Form 10-K Annual Report, Form 10-Q Quarterly Report and Form 8-K Current Report;
(f) may be delivered electronically and if so delivered, shall be deemed to have been delivered on Within ten (10) days after the date of filing with the California Department of Corporations, the Texas Department of Insurance, and any other Governmental Authority having jurisdiction over the business and affairs of Borrower and any Material Subsidiary, a copy of each filing required as a result of, or which indicates that, Borrower or any Material Subsidiary is not in compliance with all financial responsibility requirements of the applicable Governmental Authority;
(g) Within thirty (30) days prior to the end of a fiscal year, consolidated financial projections for Borrower and its Subsidiaries for the remaining fiscal years through the Maturity Date based upon (i) on which Borrower's knowledge and belief that the applicable Borrower posts such documentsfacts are materially true, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated correct, and complete in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet websiteall respects, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) assumptions which are reasonable, complete, and consistent with such facts.
(h) Within sixty (60) days of closing of a Permitted Acquisition, consolidated and consolidating balance sheet of Borrower and the Target audited by an independent accountant acceptable to Bank, which balance sheet shall notify not contain any materially adverse information from that provided to the Agents Bank pursuant to Section 7.1(k)(viii);
(i) Within one hundred twenty (120) days after the end of each fiscal year, the financial statements of each Material Subsidiary for such period, prepared by Borrower; and
(j) Promptly upon request of Bank, such other statements, lists of property and accounts, budgets, forecasts or reports as to Borrower and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsSubsidiary as Bank may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Safeguard Health Enterprises Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within the earlier of filing with the Securities and Exchange Commission or 105 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Infinera Corp and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsnotation) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent; provided that Borrower Agent’s notice to Agent of a public filing with the Agents.Securities and Exchange Commission of any required audited financial statements on Form 10-K will satisfy the requirements under this Section 10.1.2(a);
(b) as soon as available, but and in any event not later than 45 within the earlier of filing with the Securities and Exchange Commission or 50 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income income, cash flow and cash flows and same store sales performance metrics shareholders equity for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Infinera Corp and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter footnotes; provided that Borrower Agent’s notice to Agent of each Fiscal Year, a management’s discussion and analysis in connection public filing with the foregoing, provided that at Securities and Exchange Commission of any required unaudited financial statements on Form 10-Q will satisfy the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formrequirements under this Section 10.1.2(b);
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flowflow and Availability for the next Fiscal Year, budgets quarter by quarter, and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hf) concurrently together with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requesteach Borrowing Base Report, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence Obligor; provided that Borrower Agent’s notice to Agent of compliance) a public filing with the financial covenants Securities and other terms Exchange Commission of any required document will satisfy the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders requirements under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunderthis Section 10.1.2(g);
(lh) within fifteen (15) days promptly after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each Plan or other modifications thereofForeign Plan; and
(ri) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan, Guaranty and Security Agreement (Infinera Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders' equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year Year; provided that the furnishing of Parent's annual report on Form 10-K for such year, as filed with the Securities and Exchange Commission, will satisfy the most recent projections provided pursuant Parent's obligation under this Section 10.1.2(a) with respect to Section 10.1.2(g) and other information acceptable such year except with respect to the Agents.requirement that such financial statements be reported on without a "going concern" or like qualification or exception (except as expressly permitted above), or a qualification arising out of the scope of the audit;
(b) (i) as soon as available, but and in any event not later than within 30 days after the end of each month, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (including, solely during the Fiscal Year ending 2021 and to the extent reasonably practicable, corresponding profit and loss figures for the prior Fiscal Year as if the US Footwear Acquisition had been consummated on a pro forma basis), preceding year interim figures and their current year projections, and certified by the chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes; and (ii) as soon as available, and in any event within 45 days after the end of each the last month in a Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedQuarter, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (including, solely during the Fiscal Year ending 2021, corresponding profit and loss figures for the most recent projections provided pursuant to Section 10.1.2(g) prior Fiscal Year as if the US Footwear Acquisition had been consummated on a pro forma basis), preceding year interim figures and their current year projections, and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes, along with, after the end of the second Fiscal Quarter of each Fiscal Year, together with a management’s corresponding discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the results from management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and above (cother than with respect to financial statements delivered under clause (b)(i) above and (ii) at with respect to a month that is the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedlast month in a Fiscal Quarter), or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer chief financial officer of each Borrower Agent, and (ii) concurrently with delivery of financial statements under clause (b)(ii) above, any updates to Schedules 8.5, 8.6.1, 9.1.4, 9.1.11, 9.1.12, 9.1.15 and 9.1.20 as required therein to reflect changes resulting from transactions permitted under the Loan Documents (for the avoidance of doubt, no Obligor shall be required to update any such certification Schedules (other than Schedule 8.5 and Schedule 8.6.1) on an earlier date pursuant to any other Sections (other than Section 8.5 and Section 8.6.1) of this Agreement and any representation regarding such Schedules shall be deemed accurate when made where such Schedule was timely updated in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacityaccordance with this provision);
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent's consolidated balance sheets, results of operations, profit and loss, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a flow month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s 's reasonable request, a listing of each Loan Party’s Borrower's trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 10.1.2(g) shall be deemed delivered for purposes of this Agreement when Obligors notify Agent that such information is posted to the website of any of the Obligors or the website of the Securities and Exchange Commission;
(kh) compliance certificates promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(or such other evidence i) promptly, and in any event not later than 5 Business Days after each board of compliance) with directors meeting of Parent, copies of the materials related to the financial covenants performance and other outlook of Parent and its Subsidiaries provided by management to the directors for such board meeting (excluding any items (i) subject to attorney-client privilege, (ii) which relate to proposed financing transactions which contain competitive information or present a conflict of interest with Agent or (iii) the disclosure of which would breach a third party’s confidentiality agreement which prohibits dissemination of such information to Agent or Lenders pursuant to the terms thereof);
(j) solely during the period commencing on the First Amendment Effective Date and ending on the later of (i) July 8January 27, 2022 2023 and (ii) the Revolving Loan Documents (or any documents relating to renewalsdate on which Average Availability during the immediately preceding 4 consecutive week period is greater than $17,500,000, refinancings on the second Business Day of each week during such period, a key performance indicator report of Parent and extensions its Subsidiaries and a liquidity report of the Debt incurred thereunder)Parent and its Subsidiaries, in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end last Business Day of such calendar month;
(i) promptly upon request of any Agent, furnish the immediately preceding week and in form substantially similar to the Agents a copy of the most recent actuarial statement required applicable report previously delivered to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s Obligor's or the Subsidiary’s ' financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made that are sufficient to prepare financial statements in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to the Agents and Administrative Agent (for distribution to the Lenders:Lenders in accordance with customary practice):
(a) as soon as available, but and in any event not later than (i) within 90 days after the close end of each Fiscal Year, the unaudited consolidated a balance sheet as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries stockholders’ equity for such Fiscal Year, along with on a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidated basis for the absence of footnotes, normal recording year-end adjustments, Borrower and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scopegoing concern or scope of audit and shall state that such consolidated financial statements fairly present, “going concern” or similar itemsin all material respects, the consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards in the United States) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and reasonably acceptable to the Agents Administrative Agent (it being acknowledged understood that KPMG PricewaterhouseCoopers LLP shall be is acceptable to the AgentsAdministrative Agent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(b) as soon as available, but and in any event not later than within 45 days after the end of each of the first three Fiscal Quarters in any Fiscal Year (commencing with the Fiscal Quarter of each Fiscal Year of the Borrowers (includingended on or about December 30, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days2017), an unaudited balance sheets sheet as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Borrower and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for the Borrower and its Subsidiaries for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Administrative Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer or treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)the Borrower;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 75 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrower’s consolidated balance sheets, results of operations, operations and cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) flow for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(hf) concurrently with delivery for so long as any Senior Note remains outstanding, on the Business Day closest to the date which is six (6) months prior to the Senior Notes Maturity Date and within 5 Business Days after the end of financial statements under clause (b) aboveeach calendar month thereafter until the Senior Notes Maturity Date, a report setting forth certificate of a listing of any new stores, offices or places of business Senior Officer of the Loan Parties since Borrower in the delivery form of Exhibit H demonstrating the last Borrower’s compliance with the Liquidity Threshold as of such reportdate;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; and copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission SEC or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
exchange (k) compliance certificates (or such other evidence of compliance) with the financial covenants excluding listing applications and other terms of the Revolving Loan Documents (or routine reports filed with any documents relating to renewals, refinancings and extensions of the Debt incurred thereundersecurities exchange), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rh) such other reports and information (financial or otherwise) as any the Administrative Agent may request from time to time in connection with any Collateral or the Borrower’s, any Subsidiary’s or other Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(aSection 6.02(a), (bSection 6.02(b) or (jSection 6.02(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSEC) may be delivered electronically and if so deliveredelectronically, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents Administrative Agent have access (whether a commercial, third-party website or whether sponsored by any the Administrative Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to that the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e.and, soft copies) of such documents. Notwithstanding anything contained hereinupon request, in every instance the Borrowers shall be required to provide deliver paper copies of such documents to (i) the Compliance Certificates Administrative Agent and (ii) any Lender. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Agents Lenders and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery Issuing Lenders materials and/or information provided by or to maintain copies on behalf of the documents referred Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to abovereceive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in any event shall have no responsibility investment and other market-related activities with respect to monitor compliance by such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrowers with any Borrower Materials that may be distributed to the Public Lenders and that (w) all such request for delivery, and each Lender Borrower Materials shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
Appears in 1 contract
Samples: Credit Agreement (Sanmina Corp)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made a manner to allow financial statements to be prepared in accordance with GAAP reflecting all financial transactions; GAAP, and furnish to the Agents Agent, for itself and the on behalf of Lenders:
(a) as soon as available, but and in any event not later than within ninety (i90) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, HHG and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsexcept with respect to Permitted Acquisitions) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Loan Parties and acceptable to the Agents Agent (it being acknowledged understood that KPMG LLP shall be acceptable to the Agentsis acceptable), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers within thirty (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g30) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, but within sixty (60) days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers HHG and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of Administrative Borrower, on behalf of Borrowers and the Borrowers other Loan Parties, as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to audit and normal year-year end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery (which delivery may be made electronically) of financial statements under clauses (a), (bSection 10.1.2(a) and (cunder Section 10.1.2(b) above and (ii) with respect to any month which ends at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testeda Fiscal Quarter), or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower Administrative Borrower, on behalf of Borrowers and the other Loan Parties;
(with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)d) Reserved;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 sixty (60) days prior to after the beginning of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such then current Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s requestrequest (but no more frequently than monthly unless a Weekly Reporting Trigger has occurred), a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of financial statements and reports that HHG sends to its shareholders; and copies of any final regular or periodic reports that HHG files with the Securities and Exchange Commission (it being acknowledged that each Form 10K and Form 10Q publicly filed with the SEC shall be deemed to be delivered to Agent upon such public filing); and all registration statements (other than exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements annual report to be filed in connection with each Plan or reports that any Loan Party has made generally available to its shareholdersForeign Plan; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;and
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan PartyAgent’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (includingwritten request, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s ’s, financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Obligors and analysis in connection with the foregoingSubsidiaries, which consolidated statements shall all be in reasonable detail and, other than with respect to such same store sales performance metrics, and prepared in accordance with GAAP (except for the absence of footnotesand applicable Securities Laws, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified accompanied by (i) a certification (without qualification as to scope, scope or “going concern” (or similar itemssimilar) qualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to Agent (with the Agents (it being acknowledged Agent hereby acknowledging and agreeing that each of PricewaterhouseCoopers, Ernst & Young, KPMG LLP and Deloitte & Touche are acceptable), which certification shall be acceptable prepared in accordance with generally accepted auditing standards and applicable Securities Laws and (ii) an attestation report of such certified public accountants as to the Agents)Obligors’ internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of (but within 60 days after the Borrowers (including, without limitation, the fourth last Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 daysYear), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a (i) consolidated basis for Obligors and Subsidiaries and (ii) combined basis for Obligors and Subsidiaries other than the Borrowers SPEs and their SubsidiariesPassive Companies, setting forth in comparative form corresponding figures for the preceding Fiscal Year and as well as the most recent applicable projections provided pursuant to for such period delivered under Section 10.1.2(g10.1.2(f) and certified by the Borrower Agent pursuant to a certificate signed on behalf of Borrower Agent by a Senior Officer of the Borrowers Borrower Agent (with such certification to be in such Person’s capacity as a Senior Officer of such Obligor and not in such Person’s individual capacity) as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and quarterly period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and as well as the most recent applicable projections provided pursuant to for such period delivered under Section 10.1.2(g10.1.2(f) and certified by a Senior Officer (with such certification to be in such Person’s capacity as a Senior Officer of the Borrowers such Obligor and not in such Person’s individual capacity) of Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower Agent (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower Agent and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligor by independent accountants in connection with the accounts or books of any Loan Party Obligor or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 45 days prior to after the beginning of each the then current Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesObligors’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the current Fiscal Year and the next three two Fiscal Years, year by year, and for such the current Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan Party’s the Obligors’ consolidated trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants Obligor, if and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or extent such information is not available on the lenders under SEC’s or the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthParent’s website;
(i) promptly upon request after the sending or filing thereof, copies of any Agent, furnish to the Agents a copy of the most recent actuarial statement required annual report to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 filed in connection with each Plan or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Foreign Plan, ;
(iij) promptly upon receipt or dispatch, furnish the consummation of the transactions relating to the Agents Convertible Note Debt, Junior Debt or any noticeRefinancing Debt, report or demand sent or received in respect of copies certified by a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 Senior Officer as complete and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, correct (iii) promptly deliver to the Agents all information required with such certification to be reported to in such Person’s capacity a Senior Officer of an Obligor and not in such Person’s individual capacity) of the PBGC under Section 4010 of ERISAConvertible Note Debt Documents, (iv) promptly deliver to the Agents such other Junior Debt Documents or the documents or governmental reports or filings relating to any Guaranteed Pension Plansuch Refinancing Debt, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), case may be.
(k) or promptly (lx) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party Obligor or any SubsidiarySubsidiary and (y) upon receipt thereof, including but not limited to copies of all material notices or information or material non-ordinary course correspondence received from, or on behalf of, any items delivered pursuant to the Revolving Credit Agreementother creditor of any Obligor or any Subsidiary (including, without limitation, any default or similar notices);
(ol) promptly upon request therefor, all information pertaining to the Loan Parties Obligors and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rm) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyObligor’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections Section 10.1.2(a), (b) or (jSection 10.1.2(b) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s Borrowers’ website on the Internet internet at the website address indicated in writing to the Agents Agent and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s the Borrowers’ behalf on an Internet internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents Agent or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents Agent and the Lenders. Except for such Compliance Certificates, no Agent shall have any no obligation 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 Borrowers 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. The Obligors hereby acknowledge that (a) Agent and/or MLPFS will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Obligors hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Obligors or their securities) (each, a “Public Lender”). The Obligors hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Obligors shall be deemed to have authorized the Agent, MLPFS, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Obligors or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 14.11); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) Agent and MLPFS shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent or such Related Party; provided, however, that in no event shall the Agent or any of its Related Parties have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
Appears in 1 contract
Financial and Other Information. Keep adequate records Borrower shall maintain full and complete books of account with respect to its business activities, in which proper entries are made and other records reflecting the results of operations of the Projects in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the Lenders:
(a) as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates accepted accounting principles consistently applied (or such other evidence accounting method approved in writing by Lender). Borrower shall furnish or cause to be furnished to Lender such financial information concerning Borrower and the Projects as Lender may reasonably request from time to time. Lender shall also have access to such books and records and Borrower's corporate books, during regular business hours and upon reasonable advance notice to Borrower and shall have the right to make copies thereof or extracts therefrom and to discuss the affairs, finances and accounts of compliance) Borrower with Borrower and its independent public accountants, all as Lender may reasonably request. Without limiting the financial covenants and other terms generality of the Revolving Loan Documents foregoing, each year Borrower shall furnish to Lender, without prior request or demand:
A. Within ninety (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1590) days after the end of each calendar month in each Fiscal Loan Year of the Borrowersand at such other times within thirty (30) days after request by Lender, Borrower shall provide Lender with annual financial statements (including, without limitation, a certification by balance sheet and a Senior Officer profit and loss statement) for Borrower's previous fiscal year and the current fiscal year-to-date, each of each Borrower, in form and substance reasonably satisfactory to the Agents, which shall (i) that all rent payments of the Borrowers and their Subsidiaries have been madebe in form reasonably acceptable to Lender, (ii) that no lease defaults exist contain comparative information for such periodthe two (2) previous fiscal years, (iii) be certified as to the amount of outstanding consignment accounts payable for such calendar month true, correct and the book value determined in accordance with GAAP of Inventory held on a consignment basiscomplete by Borrower, and (iv) describing at Lender's election after the long-term debt occurrence of the Borrowers and their Subsidiaries as an Event of Default or Potential Default, be certified by a certified public accountant acceptable to Lender.
B. [Intentionally Omitted.]
C. Within ninety (90) days after the end of each Loan Year and at such calendar month;
other times within thirty (30) days after request by Lender, Borrower shall provide Lender with annual operating statements for the Projects for the previous fiscal year and the current fiscal year-to-date, which shall (i) promptly upon request of any Agent, furnish be in form reasonably acceptable to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian PlanLender, (ii) promptly upon receipt or dispatch, furnish to contain comparative information for the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislationtwo (2) previous fiscal years, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISAcertified as true, correct and complete by Borrower, and (iv) promptly deliver at Lender's election after the occurrence of an Event of Default or Potential Default, be certified by a certified public accountant acceptable to Lender.
D. Within ninety (90) days after the Agents end of each Loan Year and at such other documents times within thirty (30) days after request by Lender, Borrower shall provide Lender with an updated rent roll for each Project, in form satisfactory to Lender and containing such information as is reasonably required by Lender.
E. Without limiting any of Lender's rights or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as remedies in the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies event of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested failure by any Lender in order for such Lender Borrower to comply with the provisions of the Patriot Act;
(p) this SECTION 7.8, if Borrower fails to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in deliver to Lender any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreementfinancial statements or other information required herein on or before the date required in this SECTION 7.8 (the "INFORMATION DELIVERY DATE"), notify then commencing on the Agents Information Delivery Date the Variable Rate Margin (as defined in writing of the Note) or the Fixed Interest Rate (as defined in the Note), as applicable, shall be increased by one-half percent (.50%) until such consignment arrangementtime as Borrower has delivered, specifying the consignorand Lender has approved, the consignee, the term all of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers financial statements or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered by Borrower pursuant to Sections 10.1.2(a)this SECTION 7.8. In addition to such increase in the Variable Rate Margin or Fixed Interest Rate, the Monthly Installments (bas defined in the Note) or (j) (to the extent any such documents are included in materials otherwise filed shall be adjusted effective with the Securities Monthly Installment due immediately following the Information Delivery Date to reflect such increase. Once Borrower has delivered, and Exchange Commission) may Lender has approved, all of the financial statements and other information required to be delivered electronically and if so deliveredby Borrower pursuant to this SECTION 7.8, the Monthly Installments shall be deemed to have been delivered on readjusted effective with the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsMonthly Installment due immediately thereafter.
Appears in 1 contract
Samples: Loan and Security Agreement (Peregrine Real Estate Trust)
Financial and Other Information. Keep adequate records Borrower agrees to deliver to Lender, during the term of the Loans and books of account with respect to its business activitiesuntil the Loans have been fully paid and satisfied, in which proper entries are made in accordance with GAAP reflecting all financial transactions; the following statements and furnish to the Agents and the Lendersreports:
(a) as As soon as available, but available and in any event not later than within ninety (i90) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter fiscal year of each Fiscal Year of the Borrowers (includingBorrower, without limitationannual financial statements and all notes thereto, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited including a balance sheets as of the end of such Fiscal Quarter sheet and the related statements of income income, retained earnings and cash flows and same store sales performance metrics for such Fiscal Quarter fiscal year and for the portion immediately preceding fiscal year in comparative form, all prepared in conformity with Good Accounting Practice applied on a basis consistent with that of the Fiscal Year then elapsedpreceding fiscal year, on and without expressing any doubt as to such Borrower’s ability to continue as a consolidated basis for the Borrowers going concern, and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified accompanied by a Senior Officer report and opinion of the Borrowers as prepared independent certified public accountants reasonably satisfactory to Lender stating that such accountants have conducted audits of such financial statements in accordance with GAAP generally accepted auditing standards and that, in their opinion, such financial statements present fairly, in all material respects, Borrower’s financial cash flow for the period they cover in conformity with Good Accounting Practice.
(other than with respect to such same store sales performance metrics), b) As soon as available and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, in any event within ninety (90) days after the end date that is one (1) year after the prior such annual financial statement furnished to Lender, annual financial statements for each of the second Fiscal Quarter Guarantors, including statements of each Fiscal Year, a management’s discussion assets and analysis in connection with the foregoing, provided that at the end of the first, third liabilities and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;cash flow.
(c) as As soon as available, but available and in any event not later than 30 within forty five (45) days after the end of each month (including, without limitation, of the third month first three quarters of each Fiscal Quarter)fiscal year of Borrower, Borrower’s unaudited financial statements, including Borrower’s balance sheets sheet as at the close of such quarter, Borrower’s income statement and a statement of Borrower’s cash flow for such quarter and for the period from the beginning of such fiscal year to the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsedquarter, on a consolidated basis for the Borrowers and their Subsidiaries, each setting forth in comparative form the corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer same quarter of the Borrowers as preceding fiscal year and prepared in accordance with GAAP (other than such same store sales performance metrics)Good Accounting Practice applied on a basis consistent with that of the preceding fiscal year, and fairly presenting the financial position and results certified by an appropriate officer of operations for such month and period, subject to normal year-end adjustments;Borrower.
(id) concurrently with delivery of financial statements under clauses Within ten (a), (b10) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer days of such Borrower returns being filed with the Internal Revenue Service or applicable state authority, copies of Borrower’s and not in such PersonGuarantor’s individual capacity);state and federal tax returns.
(e) concurrently Within ten (10) days of such documents being filed with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any AgentInternal Revenue Service or applicable state authority, copies of any detailed audit reports extension requests or management letters submitted similar documents with respect to the board of directors (Borrower’s or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts Guarantor’s federal or books of any Loan Party or any Subsidiary, or any audit of any of them;state income tax filings.
(f) concurrently with delivery of financial statements under clause Within thirty (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1530) days after the end of each calendar month quarter, certificates of compliance executed by an authorized agent of Borrower and certifying to Lender that each and every representation and warranty in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month this Agreement and the book value determined other Loan Documents continues to be accurate in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries all material respects as of the date of such certificates and that all covenants contained in this Agreement or in any other Loan Document have been fully and completely complied with by Borrower to the date of such quarterly certificates.
(g) Prior to or at the execution of this Agreement and within thirty (30) days after the end of each calendar quarter, a current compliance certificate executed and certified to be true and complete by each Guarantor, certifying the compliance with the financial covenants of Guarantor set forth in the Guaranty.
(h) During construction of the Improvements, once each calendar quarter within forty five (45) days after the end of each calendar quarter, quarterly marketing and leasing reports containing such calendar month;information as Lender requires, certified by an officer of Borrower to be true and correct to the best of such officer’s knowledge and belief.
(i) promptly upon request Following completion of the Improvements, issuance of the certificate of occupancy for the Improvements, and acceptance of possession of any Agent, furnish to the Agents a copy portion of the most recent actuarial statement required to be submitted Premises by tenants under §103(d) of ERISAleases approved by Lender, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of thereafter once each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for month within forty five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (1045) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (includingmonth end, without limitation, pursuant to Section 4.1 unaudited monthly operating statements of the Xxxxxxx Distribution Agreement)operations of the Project, notify prepared in accordance with Good Accounting Practices, which statements shall include a balance sheet and statement of income and expenses for the Agents month then ended, together with a rent roll containing such information as Lender requires, in writing each case certified by an officer of Borrower to be true and correct to the best of such consignment arrangementofficer’s knowledge and belief. Lender further reserves the right to require such other financial information of Borrower, specifying any Guarantor, Manager, and/or the consignorProject, the consigneein such form and at such other times (including monthly or more frequently) as Lender shall deem necessary, the term of the consignment arrangement, the goods and Borrower agrees promptly to provide or to cause to be consigned provided, such information to Lender. All financial statements must be in the form and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) detail as any Agent Lender may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsreasonably request.
Appears in 1 contract
Samples: Construction Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Financial and Other Information. Keep adequate records and Except as otherwise expressly provided for in this Agreement, Borrower shall keep proper books of record and account with respect to its business activities, in which proper full and true entries are will be made of all dealings and transactions of or in relation to the business and affairs of Borrower, in accordance with GAAP reflecting all financial transactions; consistently applied, and furnish Borrower shall cause to be furnished to the Agents Agent (with copies to the other Lenders), from time to time and in a form reasonably acceptable to the LendersAgent, such information as the Agent may reasonably request, including without limitation, the following:
(a) as soon as available, but practicable and in any event not later than within one hundred twenty (i120) 90 days after the close end of each Fiscal Yearfiscal year of Borrower, the unaudited consolidated audited statements of income, retained earnings and cash flow of Borrower for each year, and a balance sheet of the Borrowers and their Subsidiaries Borrower for such year, setting forth in each case, in comparative form, corresponding figures as at of the end of the preceding fiscal year, all in reasonable detail and satisfactory in scope to the Agent and certified to Borrower by such Fiscal Yearindependent public accountants as are selected by Borrower and reasonably satisfactory to the Agent, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements whose opinion shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, scope and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable substance reasonably satisfactory to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but practicable and in any event not later than 45 within thirty (30) days after the end of each Fiscal Quarter monthly accounting period in each fiscal year of each Fiscal Year Borrower: (i) statements of income and retained earnings of Borrower for such monthly period and for the period from the beginning of the Borrowers (includingthen current fiscal year to the end of such monthly period, without limitation, the fourth Fiscal Quarter and a balance sheet of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets Borrower as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiariesmonthly period, setting forth in each case, in comparative form corresponding form, figures for the corresponding periods in the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) fiscal year, all in reasonable detail and certified as accurate by a Senior Officer the chief financial officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodBorrower, subject to changes resulting from normal year-year end adjustments, along with(ii) copies of all operating statements for such month prepared by Borrower for its internal use, after the end including without limitation, statements of cash flow, and (iii) a compliance certificate of the second Fiscal Quarter chief financial officer of each Fiscal Year, a management’s discussion and analysis Borrower in connection with substantially the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;form attached as Exhibit 5A (“Compliance Certificate”); and
(c) as soon as available, but practicable and in any event not later than 30 days after the end of each month within thirty (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1530) days after the end of each calendar month monthly accounting period in each Fiscal Year fiscal year of the BorrowersBorrower, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist Borrowing Base Certificate for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries Borrower computed as of the end last day of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders signed by the Borrower Agent; or (ii) on which such documents are posted on such chief financial officer of Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and The Loan Parties will furnish to the Agents and the LendersAgent:
(a) as soon as available, but available and in any event not later than on or before the date that is ninety (90) days after the end of each of WS’ fiscal years, (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers WS and their its Subsidiaries as at the end of such Fiscal Yearfiscal year, and the related consolidated statement of income, shareholder’s equity, income and consolidated statement of cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Yearfiscal year, along setting forth comparative consolidated figures for the preceding fiscal year, and certified by independent certified public accountants of recognized national standing whose opinion shall not be qualified (or contain an explanatory paragraph) as to the scope of audit or as to the status of WS or any other Loan Party as a going concern (other than solely with respect to, or resulting solely from an upcoming maturity date or prospective non-compliance with any financial covenants under any agreement, indenture or other document governing any Indebtedness), together with a copy of management’s discussion and analysis of the financial condition and results of operations of WS and its Subsidiaries for such fiscal year, as compared to the previous fiscal year, and (ii) at the request of Agent, unaudited consolidating balance sheets as at the end of such fiscal year and the related unaudited consolidating statements of income and consolidating statements of Capital Expenditures for such fiscal year, in connection each case, of WS and its Subsidiaries to the extent available under, and consistent with, WS’ internal reporting framework;
(b) as soon as available and in any event on or before the date that is forty-five (45) days after the end of each quarterly accounting period (other than the fourth fiscal quarter of any fiscal year) of WS, the consolidated balance sheet of WS and its Subsidiaries, in each case as at the end of each of such quarterly accounting periods and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the foregoinglast day of such quarterly period, and the related consolidated statement of cash flows for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the related period in the prior fiscal year, all of which statements shall be certified by a Senior Officer of WS as presenting fairly in all material respects the consolidated financial position of WS and its Subsidiaries at the respective dates of said statements and the consolidated results of operations for the respective periods covered thereby, subject to changes resulting from audit and normal year-end audit adjustments, together with a copy of management’s discussion and analysis of the financial condition and results of operations of WS and its Subsidiaries for such fiscal quarter, as compared to the previous fiscal quarter; provided that solely with respect to the quarterly accounting period ending on June 30, 2020, the Loan Parties will also furnish to the Agent unaudited quarterly financial statements with respect to MMI and its Subsidiaries of a similar nature as described above in this clause (b);
(c) not more than ninety (90) days after the commencement of each fiscal year of WS, a budget of WS and its Subsidiaries in reasonable detail and, other than for such fiscal year on a quarterly basis consistent in scope with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections financial statements provided pursuant to Section 10.1.2(g9.1.1(a), setting forth the material assumptions upon which such budgets are based;
(d) at the time of the delivery of the financial statements provided for in Sections 9.1.1(a) and other information acceptable (b), a Compliance Certificate of a Senior Officer of the Administrative Borrower to the Agents effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) in the case of financial statements provided pursuant to Section 9.1.1(a) or (b), the Consolidated Fixed Charge Coverage Ratio (and accompanying calculations, including any pro forma adjustments used in making such calculations and not previously reflected in prior Compliance Certificates and, in reasonable detail, all relevant financial information in support of such calculations) as at the end of such fiscal year or fiscal quarter, as the case may be, together with a reconciliation between the calculation of such ratios and the financial statements so delivered (including the exclusion of Unrestricted Subsidiaries) from the consolidated financial condition and results of WS and its Subsidiaries and (ii) a specification of any change in the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements identity of the Borrowers Restricted Subsidiaries and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Unrestricted Subsidiaries as at the end of such Fiscal Yearfiscal year or fiscal quarter, as the case may be, from the Restricted Subsidiaries and the related consolidated statement of incomeUnrestricted Subsidiaries, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearrespectively, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable provided to the Agents (it being acknowledged that KPMG LLP shall be acceptable to Lenders on the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and Closing Date or the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to fiscal year or fiscal quarter, as the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)case may be;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, as soon as available but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities within twenty-five (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1525) days after of the end of each calendar month in each Fiscal Year of the Borrowersmonth, a certification by Borrowing Base Certificate (which, subject to in Section 2.6, shall be calculated in a Senior Officer of consistent manner with the most recently delivered Borrowing Base Certificate) covering each BorrowerBorrowing Base, in form and substance reasonably satisfactory to the Agentsprovided, that (i) that all rent payments on and after the Closing Date until the earlier of (x) January 31, 2021 and (y) the date of receipt by Agent of the Borrowers New WS Appraisals and their Subsidiaries have been madeField Exams, the Administrative Borrower shall deliver an Existing Borrowing Base Certificate in lieu of a Borrowing Base Certificate each time a Borrowing Base Certificate is required to be delivered during such period), (ii) that no lease defaults exist for such period, (iii) as the Administrative Borrower will be required to furnish a Borrowing Base Certificate on or before the amount of outstanding consignment accounts payable for such Wednesday following each calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries week as of the end of such calendar month;
(i) promptly upon request of any Agentweek during which a Borrowing Base Test Event is continuing, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information Administrative Borrower may, at its option, furnish a Borrowing Base Certificate more frequently than otherwise required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreementthis clause (e) so long as such frequency of reporting is maintained for at least four weeks;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.)
Financial and Other Information. Keep adequate records and books (a) Each of account TDS (with respect to its business activitiesthe Aerial Group), in Aerial and AOC shall prepare annual consolidated balance sheets and statements of operations, shareholders' equity and cash flows, which proper entries are made shall be prepared in accordance with GAAP reflecting all U.S. GAAP, set forth in each case in comparative form the figures for the previous year, and be audited by the auditors referred to in Section 11.2 hereof. Aerial shall also prepare quarterly unaudited consolidated balance sheets and statements of operations, shareholders' equity and cash flows for itself and its Subsidiaries, certified by its chief financial transactions; officer or chief executive officer and prepared in accordance with U.S. GAAP, setting forth in each case in comparative form the same figures for the comparable period of the previous year and, in addition, year-to-date figures. TDS, Aerial or AOC, as applicable, shall furnish to Sonera the Agents and following information within the Lenderstimes specified:
(ai) as soon as availablepracticable after the end of each fiscal quarter, but and in any event not later than (i) 90 within 50 days after the close of each Fiscal Yearthereafter, the unaudited consolidated balance sheet all of the Borrowers and their Subsidiaries financial information relating to Aerial, AOC or the Aerial Group, as at applicable, referred to herein,
(ii) as soon as practicable after the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording each fiscal year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Yearany event within 100 days thereafter, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements all of the Borrowers annual financial information relating to Aerial, AOC or the Aerial Group, as applicable, referred to herein, and
(iii) on a regular and their Subsidiaries are provided timely basis, such other standard monthly management, operational and financial reports and information relating to any other PersonAerial, consolidated balance sheet of AOC or the Borrowers and their Subsidiaries Aerial Group, as at the end of such Fiscal Yearapplicable, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the AgentsSonera may reasonably request.
(b) as soon as availableSonera shall have the right to carry out an audit (by its independent auditor) once each year to determine compliance by Aerial and AOC with the allocation of credits, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingfees, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter charges and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared expenses in accordance with GAAP the terms of the Intercompany Agreements or Intercompany Policies, as applicable, and the Aerial Group Allocation Procedures. Each such audit shall be at Sonera's sole cost and expense unless it is determined that the aggregate allocations of fees, charges and expenses (other than net of any credits) made with respect to such same store sales performance metrics), and fairly presenting AOC exceeded the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end aggregate of such month and the related statements allocations (net of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(gany credits) and certified by a Senior Officer of the Borrowers as prepared which should have been made in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, Intercompany Agreements or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer PlanIntercompany Policies, as applicable; provided, that if and the Borrowers or any ERISA Affiliate have not requested such documents or notices from Aerial Group Allocation Procedures by more than 10%, in which event the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies cost of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, audit shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders borne by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAerial.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsnotation) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower Agent and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsyearend adjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default existshas occurred and is continuing, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 60 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning commencement of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Year, quarter by quarter, and for the next two Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records From and books of account with respect to its business activitiesafter the Closing Date, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and the Borrower will, furnish to the Agents and Agent, with copies for each of the Lenders:
(a) within 120 days after the end of each Fiscal Year, commencing with Fiscal Year 2004, (i) Consolidated balance sheets and Consolidated income statements showing the financial condition of (x) BH/RE and its Subsidiaries and (y) the Borrower and its Subsidiaries, in each case as of the close of such Fiscal Year and the results of their operations during such year, and (ii) a Consolidated statement of members' equity and a Consolidated statement of cash flow, as of the close of such Fiscal Year, in each case of BH/RE and its Subsidiaries and the Borrower and its Subsidiaries, all the foregoing financial statements shall be audited by a Big 4 or other independent certified public accountants reasonably acceptable to the Required Lenders, and to be in form and substance reasonably acceptable to the Required Lenders;
(b) within 30 days after the end of each fiscal month unaudited Consolidated income statements of (i) BH/RE and its Subsidiaries and (ii) the Borrower and its Subsidiaries and within 60 days after the end of each Fiscal Quarter unaudited Consolidated and consolidating balance sheets and Consolidated and consolidating income statements showing the financial condition and results of operations of the BH/RE and its Subsidiaries as of the end of each such quarter, a Consolidated and consolidating statement of members' equity and a Consolidated and consolidating statement of cash flow as of the end of each such quarter, prepared and certified by an Approved Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the BH/RE and its Subsidiaries and as having been prepared in accordance with GAAP consistently applied, setting forth in the case of each consolidated statement in comparative form the corresponding figures for the corresponding quarter of the preceding year and corresponding figures for the period beginning with the first day of the current Fiscal Year and ending on the last day of the relevant Fiscal Quarter and the corresponding period for the previous Fiscal Year, in each case subject to footnotes and normal year-end audit adjustments;
(i) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by BH/RE or any Subsidiary with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934; (ii) as soon as practicable, copies of all material reports, forms, filings and financial information submitted to any other Governmental Authority and all material reports submitted to its interest holders; (iii) within 5 Business Days after receipt by the Borrower thereof, copies of any exception reports prepared by any Gaming Authority and (iv) within 5 Business Days of filing by the Borrower with any Gaming Authority, copies of any and all reports of borrowings on form 8.130 or its equivalent;
(d) concurrently with any delivery under (a) or (b) (solely in the case of quarterly deliveries) above, a certificate of the firm or Person referred to therein (which certificate furnished by the independent public accountants referred to in paragraph (a) above may be limited to accounting matters and disclaim responsibility for legal interpretations and shall be in a form to be reasonably agreed upon by the Borrower, such independent public accountants and the Agent (acting at the reasonable direction of the Required Lenders)) certifying that during their audit or preparation, as applicable, of such financial statements nothing has come to its, his or her attention that would result in an Event or Event of Default has occurred (including recognizing (in the case of an audit performed by a Big 4 or other independent certified public accountants reasonably acceptable to the Required Lenders), however, that the scope and purpose of their audit was not to determine compliance with the terms of this Agreement or whether an Event or Event of Default has otherwise occurred); provided, however, that any certificate delivered concurrently with (a) above shall be accompanied by a supplemental certificate confirming the accuracy of the accountants' certificate (and shall in any event include calculations demonstrating compliance with the financial covenants set forth herein) and signed by an Approved Officer of the Borrower. The parties hereto agree that in the case of any delivery under (b) above, a certificate from the Chief Financial Officer or Chief Executive Officer of the Borrower shall satisfy the requirements of this Section 7.2(d) with respect to the certification of calculations demonstrating the Borrower's compliance, as of the date of the financial statements being furnished, with the financial covenants set forth herein or, in connection with the occurrence of an Event or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(e) concurrently with any delivery under (a) or (b) (solely in the case of quarterly deliveries) above, a management discussion and analysis certified by an Approved Officer of the Borrower describing any differences between the reported financial results under the financial statements delivered thereunder from the budget required by Section 7.2(j) below, which shall include, among any other information or explanation reasonably requested by the Agent, (i) the calculation of EBITDA, the Annual Actual Amount of Interest, the Annual Estimated Amount of Interest, the Shortfall Interest Amount or the Excess Interest Amount, if any, and the Excess Cash Flow for the Fiscal Quarter last ended, (ii) a list of any Capital Expenditures (including Renovation Capital Expenditures and Maintenance Capital Expenditures) made during such Fiscal Quarter and shall set forth in connection with any such Capital Expenditures made during such Fiscal Quarter, the amount and nature of any such expenditure with attached copies of any contracts entered into, invoices received and evidence of payment made with respect to any such expenditure together with mechanic's liens releases in connection with any payments made by the Borrower, and (iii) the Reserve Amount and the Operating Cash Reserve Amount at such time and a schedule listing how any cash constituting the Reserve Amount was spent;
(f) concurrently with any delivery under (b) (solely in the case of quarterly deliveries) above, a certificate from an Approved Officer of the Borrower demonstrating that the Borrower shall be in compliance with the minimum EBITDA covenant in Section 8.13 for the four Fiscal Quarter period ending on the immediately succeeding Fiscal Quarter. In addition, the Borrower shall test the EBITDA covenant in Section 8.13 by making a good faith estimate of the EBITDA for the immediately succeeding Fiscal Quarter and adding such number to the sum of the EBITDA for the Fiscal Quarter last ended (the "Last Ended Fiscal Quarter") and for the two Fiscal Quarters ending immediately prior to the Last Ended Fiscal Quarter;
(g) concurrently with any delivery under (a) above, a management letter prepared by the independent public accountants who reported on the financial statements delivered under (a) above, with respect to the internal audit and financial controls of the Borrower and its Subsidiaries;
(h) any gaming reports generated by the Borrower;
(i) within two Business Days after receipt of any response from Boulevard Invest to the Borrower's Plan, a copy of such response (or a written summary thereof in the event such response is not in writing) and immediately when delivered to Boulevard Invest (but in no event later than 15 Business Days after receipt of Boulevard Invest's response), the Borrower's counter response and any proposed course of action with respect to making any Renovation Capital Expenditures (it being agreed that any further responses from Boulevard Invest shall be delivered to the Agent within two Business Days after receipt thereof by the Borrower and the Borrower shall deliver its counter response(s) and any proposed course(s) of action to Boulevard Invest and the Agent within 15 Business Days after its receipt of any response from Boulevard Invest);
(j) as soon as available, but in any event not later than (i) 90 days after the close December 31 of each Fiscal Year, the unaudited consolidated balance sheet Borrower's annual internal operating budget (which shall list with reasonable specificity the Borrower's good faith estimate of planned Renovation Capital Expenditures through the Borrowers third Anniversary Date, Maintenance Capital Expenditures, and their Subsidiaries as at other Capital Expenditures) for the end of such next Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows as soon as prepared and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, available any amendments thereof prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.ordinary course;
(bk) as soon as available, but in any event not later than 45 days after the end December 31 of each Fiscal Quarter of each Year, a Consolidated and consolidating plan and financial forecast for the next Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of and each subsequent Fiscal Year of through the Borrowers for which the deadline shall be 75 days)Maturity Date, unaudited including (a) forecasted Consolidated and consolidating balance sheets as of the end of such Fiscal Quarter and the related forecasted Consolidated and consolidating statements of income and cash flows of the Borrower and same store sales performance metrics its Subsidiaries for such Fiscal Quarter and for the portion Years, together with an explanation of the Fiscal Year then elapsed, assumptions on a consolidated basis for the Borrowers which such forecasts are based and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (b) such other information and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after Years as the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formAgent may reasonably request;
(cl) as soon as available, but in any event not later than 30 calendar days after following the end of each fiscal month, a monthly operating report for the month (includingthen ended which shall include items used by the Borrower in measuring its operating and financial performance in the ordinary course which shall include, without limitation, the third month average daily room rate, food and beverage revenue per room, gaming revenue and the other items set forth on Exhibit J or as may otherwise be prepared by the Borrower in the ordinary course of each Fiscal Quarterits management and financial reporting so long as any such items are acceptable to the Agent (acting upon the reasonable direction of the Required Lenders), unaudited balance sheets as of the end of together with such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified other information reasonably requested by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsAgent or any Lender;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(jm) promptly after the sending or filing upon receipt thereof, copies of any proxy statementsall material notices, reports, budgets, forecasts, proposals, studies, financial statements or reports that and other information provided by any Loan Party has made generally available to its shareholders; copies of Manager, any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission casino operator or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereofLeasing Manager;
(n) promptly upon delivery thereofat the Agent's request, copies a copy of all documents and materials each annual report or other filing filed with respect to each Plan of a material financial nature or otherwise provided to any other creditor of any Loan Party the Borrower or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit AgreementERISA Affiliate;
(o) promptly upon request thereforthe earlier of preparation or receipt thereof, all information pertaining copies of any proposed agreements and Plans and Specifications with respect to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with Time Share Premises so that the provisions Agent (acting at the reasonable direction of the Patriot ActRequired Term Loan A Lenders (other than the FF&E Lender) may determine that (i) any of the foregoing agreements are reasonably satisfactory to the Required Term Loan A Lenders (other than the FF&E Lender) and (ii) the Plans and Specifications substantially conform to any such approved agreements and thereafter provide copies of any such executed agreements;
(p) promptly after the sending thereof, any notices, reports, budgets, forecasts, proposals, studies, financial statements, document or other material information provided by Holdings or any Affiliate thereof to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow reportMezzanine Lender;
(q) promptly but in any event at the Agent's reasonable request (and to be provided no later more frequently than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement once a month so long as there is documented or otherwise) in which such Loan Party acts as no continuing Event of Default), a consignee (includingtrue, without limitation, pursuant to Section 4.1 correct and complete statement of the Xxxxxxx Distribution Agreement), notify the Agents outstanding indebtedness in writing of such consignment arrangement, specifying the consignor, the consignee, the term respect of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofMezzanine Loan; and
(r) such other reports and additional information (financial or otherwise) as any the Agent may request from time to time in connection with any Collateral reasonably request, or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documentsAgent shall reasonably request upon the reasonable request of any Lender, regarding the financial and business affairs, operations or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by prospects of the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsSubsidiaries.
Appears in 1 contract
Financial and Other Information. Keep adequate records and Except as otherwise expressly provided for in this Agreement, Borrower shall keep proper books of record and account with respect to its business activities, in which proper full and true entries are will be made of all dealings and transactions of or in relation to the business and affairs of Borrower and its consolidated subsidiaries, in accordance with GAAP reflecting all financial transactions; consistently applied, and furnish Borrower shall cause to be furnished to the Agents Agent (with copies to the other Lenders, from time to time and in a form acceptable to the LendersAgent, such information as the Agent may reasonably request, including without limitation, the following:
(a) as soon as available, but practicable and in any event not later than within ninety (i90) 90 days after the close end of each Fiscal Yearfiscal year of Borrower, the unaudited audited consolidated statements of income, retained earnings and cash flow of Borrower and its consolidated subsidiaries for each year, and a consolidated balance sheet of the Borrowers Borrower and their Subsidiaries its consolidated subsidiaries for such year, setting forth in each case, in comparative form, corresponding figures as at of the end of such Fiscal Yearthe preceding fiscal year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be all in reasonable detail and, other than with respect to such same store sales performance metrics, prepared and satisfactory in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable scope to the Agents Agent and certified to Borrower by such independent public accountants as are selected by Borrower and satisfactory to the Agent, whose opinion shall be unqualified and otherwise in scope and substance satisfactory to the Agent; and (ii) the earlier copies of (xall SEC 10(K) 120 days after the close filings of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Borrower;
(b) as soon as available, but practicable and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers within forty five (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1545) days after the end of each calendar month quarterly accounting period in each Fiscal Year fiscal year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, :
(i) that all rent payments consolidated statements of income and retained earnings of Borrower and its consolidated subsidiaries for such quarterly period and for the period from the beginning of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for then current fiscal year to the end of such quarterly period, (iii) as to the amount and a consolidated balance sheet of outstanding consignment accounts payable for such calendar month Borrower and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries its consolidated subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agentquarterly period, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachmentssetting forth in each case, in respect comparative form, figures for the corresponding periods in the preceding fiscal year, all in reasonable detail and certified as accurate by the chief financial officer of each Guaranteed Pension Plan and Canadian PlanBorrower, subject to changes resulting from normal year end adjustments, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect copies of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 all SEC 10(Q) filings of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension LegislationBorrower, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date a compliance certificate of the Pension Protection Act chief financial officer of 2006, Borrower in substantially the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(jform attached as Exhibit 7A (“Compliance Certificate”), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan Agreement (Andersons Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equityincome or operations, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Obligors and acceptable to Agent, and, except for the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Fiscal Year ended December 31, and 2011, shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 60 days after the third last month of each in a Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements of income or operations and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(c) a Compliance Certificate executed by a Senior Officer of Borrower Agent, which provides a reasonably detailed calculation of the Fixed Charge Coverage Ratio and which, as of the end of each Fiscal Month which is also the end of a Fiscal Quarter, also provides a reasonably detailed calculation of EBITDA for purposes of determining the Applicable Margin for the applicable Measurement Period, delivered (i) concurrently with delivery of financial statements under clauses clause (a), ) and (b) and (c) above and above, whether or not a Fixed Charge Trigger Period then exists, (ii) at on the end first day of each monthly period any Fixed Charge Trigger Period (certifying compliance as of the last day of the Measurement Period most recently ended prior to the start of such Fixed Charge Trigger Period) and for which the financial covenant pursuant required financing statements have been delivered to Section 10.2.27 is required to be tested, or more frequently if Agent and (iii) as requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesParent and its Subsidiaries’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(hf) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) promptly at any Agent’s request, (i) a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, (ii) a report as to transactions with and services provided to Affiliates and Suburban along with amounts due therefrom and (iii) a list of the holders of Equity Interests of the Parent as of the date of such request, all in form satisfactory to Agent and;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor to the public concerning material changes to or developments in the business of such Loan PartyObligor;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(ih) promptly upon request of any the Agent’s request, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described annual report to be filed in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request connection with respect to any Guaranteed Pension each Plan or Multiemployer Foreign Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(ri) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyObligor’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan and Security Agreement (Installed Building Products, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made a manner to allow financial statements to be prepared in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to Agent and Lenders (subject to the Agents and the Lenders:limitations on distribution of any such information to Public Lenders as described in Section 14.3.3):
(a) as soon as available, but and in any event not later than within one hundred twenty (i120) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders' equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Intermediate Holdco and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a PricewaterhouseCoopers or any firm of independent certified public accountants of recognized standing selected by the Borrowers Intermediate Holdco and reasonably acceptable to the Agents Agent (it being acknowledged agreed that KPMG LLP shall for the Fiscal Year ending July 31, 2017, only the post-acquisition period will be acceptable required to the Agentsbe audited), and shall set forth forth, beginning with the Fiscal Year ending July 31, 2018 in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) Prior to the occurrence of a Qualified IPO, as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers within thirty (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g30) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, other than the third month end of each a Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Intermediate Holdco and their its Subsidiaries, setting forth in comparative form form, beginning with the Fiscal Year ending July 31, 2017, corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales and noting any purchase accounting adjustments) in order to present financial performance metrics)and measure financial covenants at normalized levels, and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) as soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Intermediate Holdco and its Subsidiaries, setting forth in comparative form, corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (and noting any purchase accounting adjustments) in order to present financial performance and measure financial covenants at normalized levels, and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (b) and clause (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existson a quarterly basis, a Compliance Certificate executed by a Senior Officer the chief financial officer or treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hi) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestBorrowing Base Certificate required pursuant to Section 8.1, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, and a detailed Accounts aging, all in form reasonably satisfactory to Agent and (ii) the report set forth in Section 8.2.1 within the prescribed time period set forth therein;
(g) concurrently with the delivery of the Borrowing Base Certificate required pursuant to Section 8.1, a copy of an Inventory report to the extent required pursuant to Section 8.3.1;
(h) Prior to the occurrence of a Qualified IPO, not later than thirty (30) days after the end of each Fiscal Year, the operating budget and cash flow projections of Borrower Agent and its Subsidiaries for such Fiscal Year, month by month;
(i) promptly after the sending or filing thereof, (i) copies of any proxy statements, financial statements or material reports that any direct or indirect parent of Intermediate Holdco has made generally available to its shareholders; (ii) copies of any regular, periodic and special reports or registration statements or prospectuses that any direct or indirect parent of Intermediate Holdco files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange (provided no delivery of the Form 8K will be required provided the Borrower Agent has notified the Agent of such filing); and (iii) copies of any press releases or other statements made available by any Obligor to the public concerning material changes to or developments in the business of such Obligor;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required annual report to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document filed in connection with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Foreign Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s Obligor's, Subsidiary's or the Subsidiary’s other Obligor's financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a)Notwithstanding the foregoing, solely in the event of the use of clause (B) below, (bi) or (j) (at all times following the consummation of a Qualified IPO, solely if and to the extent that the applicable deadline required by the SEC for delivery of the obligations in Sections 10.1.2(a) and 10.1.2 (c) for any period are later than the applicable deadlines for delivery set forth in Sections 10.1.2(a) and 10.1.2(c) (as in effect immediately prior to the consummation of such documents are included Qualified IPO) for such period, such deadlines set forth in materials otherwise Sections 10.1.2(a) and 10.1.2(c) shall automatically be deemed to be replaced with such later deadlines as required by the SEC (without any further action or consent of any party to this Agreement), provided, however, in no event shall (x) the financial statements in Section 10.1.2(a) be delivered more than 130 days after the Fiscal Year most recently following consummation of such Qualified IPO, and (y) the financial statements in Section 10.1.2(c) be delivered more than 45 days after the end of each Fiscal Quarter beginning the first full Fiscal Quarter following the consummation of such Qualified IPO, and (ii) the obligations in Sections 10.1.2(a) and 10.1.2(c) may be satisfied with respect to any financial statements of Intermediate Holdco and its Subsidiaries by furnishing (A) the applicable financial statements of Intermediate Holdco or any direct or indirect parent of Intermediate Holdco or (B) the Borrower Agent’s or Intermediate Holdco’s (or any direct or indirect parent of Intermediate Holdco), as applicable, Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission; so long as, with respect to each of clauses (A) may be delivered electronically and if so delivered(B), shall be deemed to have been delivered on the date (i) on which to the applicable Borrower posts extent such documentsfinancial statements relate to any direct or indirect parent of Intermediate Holdco, such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or provides a link thereto on such Borrower’s website indirect parent of Intermediate Holdco, on the Internet at one hand, and the website address indicated in writing information relating to the Agents Intermediate Holdco and its Subsidiaries on a standalone basis, on the Lenders other hand, which consolidating information shall not be audited, but shall be certified by a Responsible Officer of the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender Intermediate Holdco as having been fairly presented in all material respects and (ii) if such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) financial statements are in lieu of the posting of any financial statements required to be provided under Section 10.1.2(a), such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers consolidated statements shall be required audited and certified (without qualification) by PricewaterhouseCoopers or any firm of independent certified public accountants of recognized standing selected by Intermediate Holdco and reasonably acceptable to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAgent.
Appears in 1 contract
Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, Obligors and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as except to scope, “going concern” or similar itemsthe extent any qualification results solely from a current maturity of any Indebtedness) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (Agent, it being acknowledged agreed that KPMG RSM US, LLP shall be is acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)ending thereafter, unaudited balance sheets as of the end of such Fiscal Quarter quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and, to the extent applicable, consolidating bases for the Borrowers Obligors and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers Obligors as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month the most recent Fiscal Month and the related statements of income and cash flows and same store sales performance metrics flow for such month Fiscal Month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and, to the extent applicable, consolidating bases for the Borrowers Obligors and their Subsidiaries, setting forth in each case in comparative form corresponding the figures for (A) such period set forth in the preceding projections (i) delivered to Agent in the course of its pre-Closing Date underwriting, and (ii) delivered following the Closing Date pursuant to Section 10.1.2(f) of this Agreement, (B) the corresponding Fiscal Month of the previous Fiscal Year and (C) the most recent projections provided pursuant corresponding portion of the previous Fiscal Year, all in reasonable detail, such consolidated statements to Section 10.1.2(g) and be certified by a Senior Officer of the Borrowers Borrower Agent as prepared fairly presenting in all material respects the financial condition, results of operations and cash flows of the Borrower Agent and its Subsidiaries as of the end of such Fiscal Month in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and periodGAAP, subject only to normal year-end adjustmentsaudit adjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Borrower Agent (for the avoidance of doubt, regardless of whether a Senior Officer of each Borrower (with such certification to Financial Covenant Testing Period shall be in effect, Obligors shall be required to deliver a Compliance Certificate concurrently with the delivery of all financial statements under clauses (a), (b) and (c) above, which Compliance Certificate shall contain a detailed calculation of the EBITDA and the Fixed Charge Coverage Ratio as of the Fiscal Month most recently ended, which calculation shall be deemed to have been provided solely for informational purposes if a Financial Covenant Testing Period shall not be in effect at such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacitytime);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directorsany Obligor(s) of any Loan Party by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agentas soon as available, but in any event no later than 30 thirty (30) days prior to after the beginning last day of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month Fiscal Month by month Fiscal Month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(ig) at any Agent’s request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan and, on the request of the Agent, the most recently filed actuarial valuation report in respect of a Canadian Defined Benefit Pension Plan;
(j) as soon as available an in any event with 30 days after the end of each month, a written report containing an analysis by management of the financial results of most recent Fiscal Month;
(k) compliance certificates as soon as available, but in any event within thirty (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (1530) days after the end of each calendar month in each Fiscal Year of the BorrowersYear, a certification by a Senior Officer of report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each BorrowerObligor and containing such additional information as the Agent, in form and substance or any Lender through the Agent, may reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthspecify;
(il) promptly upon request of any Agentreceipt, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any notices and documents or notices described received in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply connection with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofDebt Documents; and
(rm) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Term Loan and Security Agreement (Summer Infant, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all of its financial transactions; and furnish prepare and furnish, or cause to be prepared and to be furnished, to Lender the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein and such change is disclosed to Lender and is consistent with GAAP and, if required by Lender, the Lenders:financial covenants set forth in Section 9.3 are amended in a manner requested by Lender to take into account the effects of such change):
(ai) as soon as available, but and in any event not later than (i) 90 within 120 days after the close end of each Fiscal YearYear of Borrowers, the unaudited consolidated unqualified audited balance sheet of the Borrowers and their respective Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s shareholders’ equity and cash flows of flow for the Borrowers and their Subsidiaries for such Fiscal YearYear then elapsed, which consolidated financial statements shall be audited and on a Consolidated basis, certified (without material qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and but reasonably acceptable to Lender (except for a qualification for a change in accounting principles with which the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agentsaccountant concurs), and shall set setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within 30 days after the end of each Fiscal Month (or 45 days after the end of any such Fiscal Month that is the last Fiscal Month of a Fiscal Quarter), including the last Fiscal Month of Borrowers’ Fiscal Year, unaudited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Month and the related unaudited statements of income and cash flow for such Fiscal Month and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated and consolidating basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the principal financial officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting in all material respects the Consolidated and consolidating financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter Month and period, period subject only to normal changes from audit and year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion adjustments and analysis in connection with the foregoing, provided except that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formsuch statements need not contain notes;
(ciii) as soon as available, but in any event not later than 30 15 days after the end each Fiscal Month, a listing of all of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets Borrower’s trade payables as of the end last Business Day of such month Fiscal Month, specifying the name of and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsedbalance due each trade creditor, on a consolidated basis for the Borrowers and their Subsidiariesand, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any AgentLender’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a monthly detailed trade payable agingagings in form acceptable to Lender;
(jiv) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that (including each 10K and each 10Q filed by Technologies) which any Loan Party Borrower has made generally available to its shareholders; shareholders and copies of any regular, periodic and special reports or registration statements or prospectuses that which any Loan Party Borrower files with the Securities and Exchange Commission SEC or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rv) as soon as is available, such other reports data and information (financial or and otherwise) as any Agent may request Lender, from time to time in connection with any time, may reasonably request, bearing upon or related to the Collateral or any Loan PartyBorrower’s or the Subsidiary’s and any of its Subsidiaries’ financial condition or businessresults of operations. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed Concurrently with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on delivery of the date financial statements described in clauses (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) of this Section 9.1.3, or more frequently if requested by Lender during any period that a Default or an Event of Default exists, Borrowers shall cause to be prepared and furnished to Lender a Compliance Certificate executed by the chief financial officer or treasurer of Borrowers’ Agent. Promptly after the sending or filing thereof, each Borrower shall also provide to Lender copies of any annual report to be filed in accordance with ERISA in connection with each Plan and such other data and information (financial and otherwise) as Lender, from time to time, may reasonably request, bearing upon or related to the Collateral or such Borrower shall notify the Agents and each Lender (by telecopier its Subsidiaries’ financial condition or electronic mail) results of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsoperations.
Appears in 1 contract
Samples: Loan and Security Agreement (Artesyn Technologies Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and furnish cause to be prepared and to be furnished to Agent and Lenders the Agents following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrower's certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders:, the financial covenants set forth in SECTION 9.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(ai) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated unqualified audited balance sheet sheets of the Borrowers Borrower and their its Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s shareholders' equity and cash flows of the Borrowers flow, on a Consolidated and their Subsidiaries for such Fiscal Yearconsolidating basis, which consolidated financial statements shall be audited and certified (without material qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized national standing selected by the Borrowers and Borrower but reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agentsaccountant concurs), and shall set setting forth in each case in comparative form the corresponding Consolidated and consolidating figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within 30 days after the end of each Fiscal Month hereafter (but within 45 days after the last Fiscal Month in a Fiscal Quarter and 60 days after the last Fiscal Month in a Fiscal Year), including the last Fiscal Month of Borrower's Fiscal Year, unaudited balance sheets of Borrower and its Subsidiaries as of the end of such Fiscal Month and the related unaudited statements of income and cash flow for such Fiscal Month and for the portion of Borrower's Fiscal Year then elapsed, on a Consolidated and consolidating basis setting forth in each case in comparative form the corresponding Consolidated and consolidating figures for the preceding Fiscal Year and the most recent projections provided pursuant figures for the same period covered by the Projections, and certified by the principal financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated and consolidating financial position and results of operations of Borrower and its Subsidiaries for such Fiscal Month and period subject only to Section 10.1.2(g) changes from audit and other information acceptable to the Agents.year-end adjustments and except that such statements need not contain notes;
(biii) as soon as available, but in any event not later than 45 20 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingMonth, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets a summary trade payable aging as of the end last day of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedMonth, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant acceptable to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiaryand, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any at Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s 's request, a listing of each Loan Party’s all of Borrower's trade payables (including, without limitation, with respect to as of the Xxxxxxx Debt)last day of such Fiscal Month, specifying the trade creditor name of and balance due, and a detailed due each trade payable agingcreditor;
(jiv) not later than 20 days after each Fiscal Month, a statement of all accruals for allowances to Distributors under Distributor incentive programs as of the last day of such Fiscal Month; and
(v) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; shareholders and copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party which Borrower files with the Securities and Exchange Commission SEC or any other Governmental AuthorityAuthority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP in all material respects reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated (i) balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, a “going concern” or similar itemsscope of audit qualification) by a Ernst & Young LLP or by another firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and (ii) unaudited balance sheets as of the most recent projections provided pursuant to Section 10.1.2(g) end of such Fiscal Year and other information acceptable to the Agents.related statements of income, cash flow and shareholders equity for such Fiscal Year, on a consolidating basis for Parent and its Subsidiaries, which consolidating statements shall be based on SEC reporting segments and shall set forth in comparative form corresponding figures for the preceding Fiscal Year;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers first three Fiscal Quarters of Parent, (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), i) an unaudited balance sheets sheet as of the end of such Fiscal Quarter and the related statements of income and cash flows flow for such Fiscal Quarter and same store sales performance metrics for the portion of the Fiscal Year then elapsed, on a consolidated and consolidating basis for Parent and its Subsidiaries (in the case of consolidating statements, based on SEC reporting segments), setting forth in comparative form corresponding figures for the preceding Fiscal Year, (ii) an unaudited balance sheet as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, for the Initial UK Borrower and its Subsidiaries, (iii) an unaudited balance sheet as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for NACCO BV and its Subsidiaries, and (iv) following the Australian Borrower Activation Date, an unaudited balance sheet as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Australian Borrower(s) and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and each case, certified by a Senior Financial Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, other than the third last month of each Fiscal Quarter), an unaudited balance sheets sheet as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Financial Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-year end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with the delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Financial Officer;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (Parent or the audit committee of the board of directors) of any Loan Party its Subsidiaries by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery (i) not later than March 31st of each Fiscal Year, and containing substantially the same types of financial statements under clause (b) above, and otherwise promptly after information contained in the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules projections delivered pursuant to this Section and/or identifying 6.1(o), the annual business plan for Parent and its Subsidiaries for such changesFiscal Year and for each month in such Fiscal Year, and (ii) not later than June 30th of each Fiscal Year, the annual long- range business forecast of Parent and its Subsidiaries for each succeeding Fiscal Year, up to and including the Fiscal Year during which it is anticipated that there shall be Full Payment of all Obligations, containing a consolidated balance sheet, income statement and statement of cash flow;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s reasonable request, a listing of each Loan PartyObligor’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Parent or any Loan Party of its Subsidiaries has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Loan Party of its Subsidiaries files with the Securities and Exchange Commission SEC or any other Governmental Authority, or any similar securities exchangeregulatory authority; and copies of any press releases or other statements made available by a Loan Party Parent or any of its Subsidiaries to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthbusiness;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents any annual report to be filed in connection with each Pension Plan, Foreign Plan (that is a defined benefit pension plan) and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit AgreementUK Pension Plan;
(oj) promptly upon request thereforfollowing receipt, all information pertaining a copy of any notice from the Pensions Regulator in which it proposes to take action which may result in the Loan Parties and their Subsidiaries reasonably requested by issuance of a Contribution Notice or Financial Support Direction in respect of any Lender in order for such Lender to comply with the provisions of the Patriot ActUK Pension Plan;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyParent’s or the any Subsidiary’s financial condition or business. Documents ; and
(l) if any of the information or disclosures provided on any of Schedules 7.4, 8.5, 8.6.1, 9.1.4, 9.1.10, or 9.1.19 attached hereto as of the Closing Date become outdated or incorrect in any material respect, the Borrowers shall deliver to the Agent and the Lenders as part of the Compliance Certificate required pursuant to Section 10.1.2(d) (or more frequently in the Borrowers’ reasonable judgment or upon the request of the Agent) such revision or updates to such Schedule(s) as may be necessary or appropriate to update or correct such Schedule(s) which revisions shall be effective from the date accepted in writing by the Agent, such acceptance not to be delivered pursuant unreasonably withheld; provided, that (i) no such revisions or updates to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSchedule(s) may be delivered electronically and if so delivered, shall be deemed to have been delivered on cured any breach of warranty or misrepresentation occurring prior to the date (idelivery of such revision or update by reason of the inaccuracy or incompleteness of any such Schedule(s) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing time such warranty or representation previously was made or deemed to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender be made and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mailSchedule(s) of the posting of any such documents and provide may only be updated to the Agents extent that such related actions disclosed are otherwise not prohibited by this Agreement and the Lenders by electronic mail electronic versions (i.e., soft copies) of other Loan Documents prior to such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery Schedule being revised or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsupdated.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Hyster-Yale Materials Handling, Inc.)
Financial and Other Information. Keep adequate records The Borrower shall deliver the following documents and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish information (the “Specified Information”) to the Agents Administrative Agent and the Lenders:
: Audited consolidated annual financial statements of FS Energy and Power Fund (a“FSEP”) as soon as available, but in any event not later than (i) 90 Within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholderFSEP’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited fiscal year Unaudited quarterly financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.
(b) as soon as available, but in any event not later than FSEP Within 45 days after the end of each Fiscal Quarter fiscal quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP FSEP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter last fiscal quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end fiscal year of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(cFSEP) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (Such other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such other information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) Borrower as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Within five Business Days after request by such Lender For each Non-Private Collateral or any Loan Party’s or the Subsidiary’s Obligation, all financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), information (bother than material non-public information) or (j) (relating to the extent any obligors on such documents are included Underlying Asset and made available by such obligors to the lenders of record of such Underlying Asset in materials otherwise filed accordance with the Securities and Exchange Commission) may be delivered electronically and if so delivereddocuments governing such Underlying Asset. Within five Business Days of such information being made available to the Borrower, FSEP or FSEP’s affiliates. Such information shall be deemed made available in an electronic data room that is at all times available to have been delivered on the date (i) on which Lenders and the applicable Borrower posts such documentsAgents. For each Private Underlying Asset, or provides a link thereto all bank syndicate information relating to the obligors on such Borrower’s website on the Internet at the website address indicated in writing Underlying Asset and made available by such obligors to the Agents lenders of record of such Underlying Asset in accordance with the documents governing such Underlying Asset (but subject to satisfaction of applicable confidentiality requirements under the documents governing such Underlying Asset). For purposes of the foregoing, “bank syndicate information” shall not include any material non-public information relating to the obligors on a Private Underlying Asset that not been made available to all of the private-side lenders of record under the documents governing such Underlying Asset. Within five Business Days of such information being made available to the Borrower, FSEP or FSEP’s affiliates. Such information shall be made available in an electronic data room that is at all times available to the Lenders and the Lenders Agents. A copy of each Commitment to purchase or sell an Underlying Asset entered into by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, from time to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documentstime. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.Within two Business Days
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLender:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except on consolidated basis for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, a “going concern” qualification or similar itemsnotation other than as a result of debt maturity within one year) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Lender;
(b) as soon as available, but and
(i) if a Financial Reporting Trigger Period is not in effect during the applicable Fiscal Quarter, in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes; and
(ii) if a Financial Reporting Trigger Period is in effect at any time during the applicable month, in any event within 30 days after the end of each month, unaudited balance sheets as of the end of such month and for the portion of the Fiscal Year then elapsed, on consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents while Lender at any time an Event of Default existshas occurred and is continuing and Loans are outstanding, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports, in each case which demonstrate an issue with Borrowers’ internal controls, submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 60 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month Fiscal Quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinQuarter;
(hf) concurrently together with delivery of financial statements under clause (b) aboveeach Borrowing Base Report provided on a monthly or quarterly basis, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Lender;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each Plan or other modifications thereofForeign Plan; and
(ri) such other reports and information (financial or otherwise) as any Agent Lender may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition condition, ownership or business. Documents required to be delivered pursuant to Sections Section 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSection 10.1.2(b) may be delivered electronically and if so delivered, shall be deemed to have been delivered to, and received by, Lender on the date (ix) on which the applicable Borrower posts such documents, or provides a link thereto thereto, on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or Internet, (iiy) on which such documents are posted on such Borrower’s behalf on an Internet Intralinks or intranet another website, if any, to which each Lender and the Agents have has access (whether a commercial, commercial or governmental third-party website or whether sponsored by any Agent); provided that: Lender) or (iz) on which Borrower has filed such Borrower shall deliver paper copies of such documents to reports with the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify SEC via the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsXXXXX filing system.
Appears in 1 contract
Samples: Loan and Security Agreement (Arlo Technologies, Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLender:
(a) (i) as soon as available, but and in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) within 120 days after the close of each Fiscal Year and Closing Date,
(yA) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated an opening balance sheet as of the Borrowers and their Subsidiaries as at the end of such Fiscal Yeara date not later than July 17, and the related 2015, on a consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries basis for such Fiscal YearHoldings, which consolidated financial statements balance sheet shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to Lender, and (B) an opening balance sheet as of a date not later than July 17, 2015, unaudited and on a consolidating basis for each of the Agents other Borrowers and Subsidiaries, (it being acknowledged that KPMG LLP ii) as soon as available, and in any event within 120 days after the close of Fiscal Year 2015, (A) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for the period from the Closing Date through the end of such Fiscal Year, on a consolidated basis for Holdings, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to the Agents)Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.
Lender, and (bB) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited a balance sheets sheet as of the end of such Fiscal Quarter Year and the related statements of income income, cash flow and shareholders' equity for the period from the Closing Date through the end of such Fiscal Year, unaudited and on a consolidating basis for the other Borrowers and Subsidiaries, and (iii) as soon as available, and in any event within 120 days after the close of each Fiscal Year thereafter, (A) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flows flow and same store sales performance metrics shareholders' equity for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedYear, on a consolidated basis for the Holdings, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and their Subsidiariesreasonably acceptable to Lender, setting and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant other information reasonably acceptable to Section 10.1.2(gLender, and (B) and certified by a Senior Officer balance sheet as of the Borrowers as prepared in accordance with GAAP (other than with respect to end of such same store sales performance metrics)Fiscal Year and the related statements of income, cash flow and fairly presenting the financial position and results of operations shareholders' equity for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, unaudited and on a management’s discussion consolidating basis for the other Borrowers and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formSubsidiaries;
(cb) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer or Treasurer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting in all material respects the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Lender while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer or Treasurer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 60 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrowers' consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s Lender's request, a listing of each Loan Party’s Borrower's trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Lender;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent Lender may reasonably request from time to time in connection with any Collateral or any Loan Party’s Borrower's, Subsidiary's or the Subsidiary’s other Obligor's financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or ;
(j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to aboveas soon as available, and in any event shall have no responsibility within 120 days after the close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to monitor compliance Lender;
(k) upon receipt or delivery thereof by or to any Obligor or Subsidiary, any notice of "Default" or "Event of Default" (under and as defined in the Borrowers Mezzanine Debt Documents) and, without duplication of any report required to be provided hereunder, each material report required to be provided pursuant to the Mezzanine Loan Agreement and, upon execution thereof, any waiver, amendment or other modification to the Mezzanine Debt Documents;
(l) upon receipt or delivery thereof by or to any Borrower, any notice of "Default" or "Event of Default" (under and as defined in the Factoring Agreements) and, without duplication of any report required to be provided hereunder, each material report required to be provided pursuant to the Factoring Agreements and, upon execution thereof, any waiver, amendment or other modification to the Factoring Agreements; and
(m) at Lender's request at any time after any Borrower files or consents to the filing of a consolidated income tax return with any such request for deliveryPerson other than Borrowers and Subsidiaries under the limited circumstances set forth in Section 10.2.12, provide Lender with true, correct and each Lender shall be solely responsible for requesting delivery to it or maintaining its complete copies of all filed consolidated income tax returns for the Person with which such documentsBorrower files or consents to the filing of such consolidated income tax returns and evidence that such Person has timely and fully paid all Taxes owing to Governmental Authorities under such returns.
Appears in 1 contract
Financial and Other Information. Keep adequate records and books Maintain a standard system of account with respect to its business activities, in which proper entries are made accounting in accordance with GAAP reflecting all financial transactions; GAAP, and furnish to the Agents and the LendersLender:
(a) as As soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) within 120 days after the close end of each Fiscal Year and (y) the date on which fiscal year, the audited financial statements of the Borrowers Consolidated and their Subsidiaries are provided to any other Person, consolidated consolidating balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement statements of income, shareholder’s shareholders’ equity and cash flows of the Borrowers Borrower and their its Subsidiaries as of the end of and for such Fiscal Yearyear, which consolidated financial statements shall be audited and certified setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by the Accountants (without qualification as to scope, a “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by the Borrowers like qualification or exception and acceptable without any qualification or exception as to the Agents (it being acknowledged that KPMG LLP shall be acceptable scope of such audit) to the Agents), effect that such Consolidated and shall set forth consolidating financial statements present fairly in comparative form corresponding figures for all material respects the preceding Fiscal Year financial condition and results of operations of the most recent projections provided pursuant to Section 10.1.2(g) Borrower and other information acceptable to the Agents.its Subsidiaries on a Consolidated and consolidating basis in accordance with GAAP consistently applied;
(b) as As soon as available, but in any event not later than within 45 days after the end of each Fiscal Quarter the first three fiscal quarters of each Fiscal Year of the Borrowers (including, without limitationfiscal year, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited Consolidated and consolidating balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Borrower and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets its Subsidiaries as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month fiscal quarter and for the then elapsed portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiariesfiscal year, setting forth in each case in comparative form corresponding the figures for the preceding Fiscal Year and corresponding fiscal period of the most recent projections provided pursuant to Section 10.1.2(g) previous fiscal year, all in reasonable detail and certified by a Senior Officer its chief financial officer as presenting fairly in all material respects the financial condition and results of operations of the Borrowers as prepared Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and periodconsistently applied, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity As soon as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agentavailable, but in any event no later than within 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in of each Fiscal Year fiscal year, the Consolidated and consolidating balance sheets and related statements of income and cash flows of the Borrowers, a certification by a Senior Officer of each Borrower, in form Borrower and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their its Subsidiaries as of the end of such calendar monthmonth and for then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding fiscal period of the previous fiscal year, all in reasonable detail and certified by its chief financial officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP consistently applied, subject to normal year-end adjustments;
(d) Concurrently with any delivery of financial statements under Section 6.01(a), 6.01(b) or 6.01(c), a certificate of the President or other Authorized Signatory of the Borrower in a form that is reasonably acceptable to the Lender (the “Compliance Certificate”) (i) promptly upon request of certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any Agent, furnish to the Agents a copy of the most recent actuarial statement required action taken or proposed to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document taken with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Planthereto, (ii) promptly upon receipt setting forth (A) in the certificate delivered concurrently with the financial statements under Sections 6.01(a) or dispatch6.01(b), furnish to reasonably detailed calculations demonstrating compliance with Section 7.09 and (B) any change in the Agents any noticeSubsidiary Guarantors as of the date of such certificate, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to stating whether any change in GAAP or in the Agents all information required to be reported to application thereof has occurred since December 31, 2014 and, if any such change has occurred, specifying the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies effect of such documents and notices promptly after receipt thereofchange on the financial statements accompanying such certificate;
(ne) promptly Prompt written notice (upon delivery becoming aware thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided thatif: (i) such any Indebtedness of the Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower Guarantor in excess of $100,000 is declared or shall become due and payable prior to deliver such paper copies until a written request to cease delivering paper copies its stated maturity, or is given by such Agent or such Lender called and not paid when due, (ii) such Borrower a default shall notify have occurred under any note in excess of $100,000 (other than the Agents and each Lender Note) or (by telecopier iii) the holder of, or electronic mail) any obligee with respect to, any Indebtedness of the posting Borrower or any Guarantor in excess of $100,000 has the right to declare any such Indebtedness due and payable prior to its stated maturity;
(f) Prompt written notice of: (i) any citation, summons, subpoena, order to show cause or other document naming the Borrower a party to any proceeding before any Governmental Authority that could reasonably be expected to have a Material Adverse Effect or that expressly calls into question the validity or enforceability of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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.Loan Documents,
Appears in 1 contract
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 105 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with a management’s discussion on consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than its Subsidiaries (and on consolidating basis with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, balance sheets and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year), which consolidated financial statements shall be audited and certified (without qualification as to scope, any “going concern” or similar itemslike qualification or exception or any qualification or exception as to the scope of such audit or with respect to the absence of any material misstatement) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Obligors and reasonably acceptable to the Agents Agent (it being acknowledged that KPMG LLP shall be any “big four” firm is acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 within 60 days after the end of each the first three Fiscal Quarter Quarters of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their Subsidiariesits Subsidiaries (and on consolidating basis with respect to balance sheets and statements of income), setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer or chief accounting officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after quarterly adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but in any event not later than 30 days after within 5 Business Days from the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by a Senior Officer the chief financial officer or chief accounting officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 60 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s and its Subsidiaries consolidated balance sheets, results of operations, operations and cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) flow for the next three Fiscal Years, year by then current fiscal year, and for such Fiscal Year, on a month quarter by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinquarter;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyObligor’s invoiced trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed invoiced trade payable aging, all in form reasonably satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Parent has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Parent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and ;
(h) promptly, at Agent’s request, after the sending or filing thereof, copies of any press releases annual report to be filed in connection with each Plan or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthCanadian Pension Plan;
(i) promptly upon request of any Agentas soon as available, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) within 180 days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented the close of each Fiscal Year, commencing with the Fiscal Year ending on or otherwise) in which such Loan Party acts as around February 3, 2024, a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereofSustainability Compliance Certificate; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s or the SubsidiaryObligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a10.1.2 (a), (b) or (jg) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i1) on which the applicable Borrower Parent posts such documents, or provides a link thereto on such BorrowerParent’s website on the Internet at the website address indicated as set forth in writing to the Agents and the Lenders by the Borrower Agent; or Closing Date Letter, (ii2) on which such documents are posted on a publicly available website maintained by or on behalf of the Securities and Exchange Commission for access to documents filed in the XXXXX database (the “XXXXX Website”), or (3) on which such Borrowerdocuments are posted on Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such that except with respect to documents to posted on the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower XXXXX Website, Parent shall notify the Agents and each Lender Agent (by telecopier or electronic mail) of the posting of any such documents and and, if requested by Agent, provide to the Agents and the Lenders Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained hereinTo the extent the Securities and Exchange Commission provides any extension for delivery of documents required to be delivered pursuant to Sections 10.1.2 (a), (b) or (g) (to the extent any such documents are included in every instance materials otherwise filed with the Borrowers Securities and Exchange Commission), the timing for delivery of such items shall be required extended hereunder to provide paper copies a date no later than the extended date of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 provided by the Borrowers with any such request for delivery, Securities and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsExchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Guess Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersAgent:
(a) as soon as available, but and in any event not later than within 120 days (ior, if applicable, such earlier date on which such annual financial statements are required to be filed with the SEC) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with on a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidated basis for the absence of footnotes, normal recording year-end adjustments, Applicable Reporting Entity and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, any “going concern” or similar itemsother qualification, exception or explanatory paragraph (except resulting from (i) the impending maturity of the Obligations within the four fiscal quarter period following the relevant audit date or (ii) any potential future breach of the financial covenants under this Agreement) or any qualification, exception or explanatory paragraph as to the scope of such audit) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower Agent and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 within 60 days (or, if applicable, such earlier date on which such quarterly financial statements are required to be filed with the SEC) after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income income, cash flow and cash flows and same store sales performance metrics shareholders equity for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedlapsed, on a consolidated basis for the Borrowers Applicable Reporting Entity and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) while a Trigger Period is in effect (provided, that if a Trigger Period commenced and is no longer in effect, Agent shall receive at least one set of monthly financial statements pursuant to this clause (c)), as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income income, cash flow and cash flows and same store sales performance metrics shareholders equity for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Applicable Reporting Entity and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), (b) and through (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by a Senior Officer of each Borrower Agent (with such certification to be which shall calculate the Fixed Charge Coverage Ratio if a Covenant Trigger Period is in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacityeffect);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Applicable Reporting Entity by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (ba) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan PartiesObligors’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such current Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Obligor or Parent has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor or Parent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party an Obligor or Parent to the public concerning material changes to or developments in the business of such Loan PartyObligor or Parent;
(kh) compliance certificates (promptly after the sending or such other evidence filing thereof, copies of compliance) any annual report to be filed in connection with the financial covenants and other terms of the Revolving Loan Documents (each Plan or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder)Foreign Plan;
(li) within fifteen concurrently with any delivery of financial statements under clauses (15a) days after the end of each calendar month in each Fiscal Year of the Borrowersthrough (c) above, a certification by certificate of a Senior Officer financial officer of each BorrowerBorrower Agent, in form and substance reasonably satisfactory to the AgentsAgent, (i) that all rent payments setting forth as of a recent date a reasonably detailed summary of the Borrowers and their Swaps to which any Obligor or any of its Subsidiaries have been made, (ii) that no lease defaults exist for is a party on such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthdate;
(ij) promptly upon request of any Agent, furnish to the Agents a copy within five Business Days of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery effectiveness thereof, copies of all documents and materials of a (i) any material financial nature statement or otherwise provided report furnished by any Obligor to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered party pursuant to the Revolving Credit Agreementterms of the Term Loan Documents and not otherwise required to be furnished to the Agent pursuant to this Agreement and (ii) any amendment or modification to the Term Loan Documents or the Hercules Note Documents;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise, including financial covenant reporting) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition condition, ownership or business, including bank statements, certifications and other evidence as may be reasonably requested by Agent in connection with any determination of Liquidity under this Agreement;
(l) concurrently with any delivery of financial statements under clauses (a) through (c) above, a copy of any Major Material Contract (or material amendment or modification thereto) entered into by any Obligor or any of its Subsidiaries after the Closing Date and not previously delivered to the Agent; and
(m) at any time that any Unrestricted Subsidiaries or Parent are included in the financial statements delivered pursuant to clauses (a) through (c) above, then concurrently with any delivery of such financial statements, a certificate of a financial officer of Borrower Agent setting forth consolidating spreadsheets that show all of the Unrestricted Subsidiaries and Parent and the eliminating entries, in such form as would be presentable to the auditors of the Applicable Reporting Entity, and that summarizes the results of the Obligors and their Restricted Subsidiaries on a stand-alone basis; and
(n) not later than the third Business Day of each calendar week (beginning on the first such Business Day that is immediately prior to the date that is 91 days before the scheduled maturity date of the Hercules Seller Note and continuing thereafter until the Hercules Seller Note has been paid in full), a certificate in form and detail reasonably satisfactory to Agent executed by a Senior Officer of Borrower Agent certifying as to the amount of Liquidity of Borrowers as of the close of business of the prior calendar week, accompanied by reasonably detailed calculations of Liquidity and bank statements as of the close of business of the prior calendar week (a “Liquidity Certificate”). Documents Documents, reports and notices required to be delivered pursuant to Sections 10.1.2(a), clauses (a) and (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSEC or any similar regulator or Governmental Authority of any jurisdiction) or (g) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Agents Agent have access (whether a commercial, third-party website or whether sponsored by any the Agent); provided that: (i) such that the Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide deliver paper copies of the Compliance Certificates such documents to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have or any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsthat so requests.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Atlas Energy Solutions Inc.)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders equity for such Fiscal Year, along with for Skechers on a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearConsolidated Basis, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Year;
(b) as soon as available, but and in any event not later than within 45 days after the end close of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, for Skechers on a consolidated basis for the Borrowers and their SubsidiariesConsolidated Basis, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a the chief financial officer or other Senior Officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and periodQuarter, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;footnotes.
(c) during any Dominion Period, as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, but within 45 days after the third last month of each any Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, for Skechers on a consolidated basis for the Borrowers and their SubsidiariesConsolidated Basis, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a the chief financial officer or other Senior Officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) or (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of the Borrower Agent; without limiting the foregoing, Obligors shall also furnish to Agent, within three Business Days following the commencement of each Borrower Covenant Testing Trigger Period, an accurate calculation of the Fixed Charge Coverage Ratio (with such certification in the form attached as Exhibit D to be in such Person’s capacity as the Compliance Certificate) for the most recently ended Fiscal Quarter for which financial statements are required to have been delivered pursuant to Section 10.1.2(b), certified by a Senior Officer of the Borrower Agent; provided, that notwithstanding anything to the contrary set forth in Section 6.2, Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for the benefit of Borrowers following the commencement of each Covenant Testing Trigger Period until such Borrower and not in such Person’s individual capacityCompliance Certificate has been delivered to Agent as required by this Section 10.1.2(d);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Obligors by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly not later than 60 days after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning commencement of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ for Skechers on a Consolidated Basis, including consolidated balance sheets, results of operations, cash flowflow and Availability for such Fiscal Year, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by yearquarter-by-quarter, and for such Fiscal Year and the following Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinyear-by-year;
(hg) concurrently with delivery within ten (10) days of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, but in no event more frequently than monthly unless an Event of Default has occurred and is continuing, a listing of each Loan Party’s Borrowers’ trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Skechers has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party any Obligor to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthObligor;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature any annual report to be filed in connection with each Plan or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit AgreementForeign Plan;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate proper records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactionsGAAP; and furnish to the Agents and Agent (with sufficient copies for the Agent’s distribution to the Lenders:):
(a) as soon as available, but in any event not later than (i) 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity, cash flows and same store sales performance metrics of the Borrowers and their Subsidiaries for such Fiscal Year, along with a management’s discussion and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 within 95 days after the close of each Fiscal Year and (y) the date on which the audited or, so long as such financial statements are required to be filed on periodic reports under the Securities Exchange Act of 1934, as amended, and the Borrowers rules and their Subsidiaries are provided to any other Personregulations promulgated by the SEC thereunder, such later date as permitted by the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder), its (i) consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s cash flow and shareholders’ equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, on a consolidated basis for the Lead Borrower and its Subsidiaries (x) which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) accompanied by a report and opinion by a firm of independent certified public accountants of recognized standing selected by the Borrowers Lead Borrower and acceptable to the Agents Agent (it being acknowledged agreed that KPMG Ernst & Young LLP shall be is acceptable to the AgentsAgent), which report and opinion shall be prepared in accordance with GAAP and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and (y) all of which consolidated statements shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent and (ii) annual consolidated financial statements for the European Subsidiaries of the Lead Borrower prepared in a manner consistent with historical practice;
(b) as soon as available, but in any event not later than 45 within 50 days after the end of each Fiscal Quarter (or, so long as such financial statements are required to be filed on periodic reports under the Securities Exchange Act of each Fiscal Year 1934, as amended, and the rules and regulations promulgated by the SEC thereunder, such later date as permitted by the Securities Exchange Act of 1934, as amended, and the Borrowers (including, without limitation, rules and regulations promulgated by the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 daysSEC thereunder), (i) unaudited balance sheets as of the end of such Fiscal Quarter for the first three Fiscal Quarters of such Fiscal Year and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Lead Borrower and their Subsidiaries, its Subsidiaries setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Lead Borrower as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting presenting, in all material respects, the financial position and results of operations operations, on a consolidated basis, for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month audit adjustments and the related statements absence of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default exists, a Compliance Certificate executed by a Senior Officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity);
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of them;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(j) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements footnotes and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s or the Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than within 105 days (i) or 90 days if the Obligors or their direct or indirect parent is required to file with the Securities and Exchange Commission a quarterly report on Form 10-K for such Fiscal Year) after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial (but not consolidating) statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a Ernst & Young LLP or another firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information reasonably acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 60 days (or 45 days if the Obligors or their direct or indirect parent is required to file with the Securities and Exchange Commission a quarterly report on Form 10-Q for such Fiscal Quarter) after the end of each of the first three Fiscal Quarter of Quarters in each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Year, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) not later than 30 days after the end of each Fiscal Year, projections of Borrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month;
(g) concurrently with delivery of financial statements under clause (bc) above, and otherwise promptly after the request or more frequently if requested by any Agent, Agent while a certificate Default or Event of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning of each Fiscal Year of the Borrowers, draft projections of the Loan Parties’ consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requestDefault exists, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(jh) concurrently with delivery of financial statements under clause (c) above, or at such other times as may be requested by Agent following the occurrence and during the continuance of an Event of Default, a listing (in form reasonably satisfactory to Agent) of each Borrower’s Eligible Vessels as of the last day of such calendar month, together with the net book value of each thereof and specifying whether each such Vessel is a Blue Water Domestic Vessel, Blue Water International Vessel or Xxxxx Water Vessel;
(i) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its public shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kj) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 sending or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each Plan or other modifications thereofForeign Plan; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan and Security Agreement (United Maritime Group, LLC)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated basis for Parent and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsedelapsed together with a reconciliation of the accounts receivables to the balance sheets, on a consolidated basis for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent, as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)fiscal month, unaudited balance sheets as of the end of such fiscal month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsedelapsed together with a reconciliation of the accounts receivables to the balance sheets, on a consolidated basis for the Borrowers Parent and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the treasurer, controller, or chief financial officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsParent;
(id) concurrently with delivery of financial statements under clauses (a), (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer (i) the chief financial officer of each Borrower Parent with respect to Fiscal Quarter end and Fiscal Year end financial statements, and (ii) the treasurer, controller, or chief financial officer of Parent with such certification respect to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)the monthly financial statements;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit all management letters, to the extent available, and other material reports or management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Parent by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s consolidated balance sheets, results of operations, cash flowflow and Availability for the next Fiscal Year, budgets month by month and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein;
(hg) concurrently with delivery by the 15th day of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s requesteach month, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jh) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Parent or any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by Parent or a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan Party;
(k) compliance certificates (Parent or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;; and
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents sending or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery filing thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods annual report to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers filed in connection with each ERISA Plan or other modifications thereofForeign Plan; and
(rj) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyParent’s, its Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan and Security Agreement
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, Parent and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Subsidiaries, which consolidated financial statements shall be audited (and certified (reported on without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and reasonably acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 45 days after the third last month in each of each the first three Fiscal QuarterQuarters in a Fiscal Year and within 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Parent and their its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 90 days prior to after the beginning of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) for the next three Fiscal Years, year by year, and Availability for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or ;
(j) (to by no later than the extent any such documents are included in materials otherwise filed with last Business Day of each month, a report listing the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides amount of outstanding Dealer Notes purchased by a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet websiteDealer Note Purchase Party, if anyapplicable, to which each Lender and the Agents have access during such month; and
(whether a commercial, third-party website or whether sponsored by any Agent); provided that: (ik) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to aboveas soon as available, and in any event shall have no responsibility within 120 days after the close of each Fiscal Year, financial statements for each Guarantor which is not a direct or indirect Subsidiary of Parent, in form and substance reasonably satisfactory to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Steinway Musical Instruments Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) 90 within 120 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter)month, unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding including current year interim figures for the and preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and year interim figures, certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-year end adjustmentsadjustments and the absence of footnotes, together with (x) a reconciliation of receivables from the most recently delivered Borrowing Base Certificate and (y) a reconciliation of payables from the recently delivered accounts payable aging, in each case in form and substance acceptable to Agent;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to after the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan PartiesBorrowers’ consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s request, a listing of each Loan PartyBorrower’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (promptly after the sending or such other evidence filing thereof, copies of compliance) any annual report to be filed in connection with the financial covenants and other terms of the Revolving Loan Documents (each Plan or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder)Foreign Plan;
(li) within fifteen (15) not later than 15 days after the end of each calendar month in each Fiscal Year of the Borrowersmonth, a certification by a Senior Officer of each Borrower, in form back-up documentation with respect to all Borrowing Base Certificates and substance reasonably satisfactory related ineligibles calculations delivered and/or required to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for be delivered during such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar month;
(ij) promptly upon request concurrently with delivery of any Agentfinancial statements under clause (b) above, furnish an officer’s certificate certifying as to the Agents a copy balances in all bank accounts of the most recent actuarial statement required to be submitted under §103(d) of ERISA, Company and its Subsidiaries maintained with institutions other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any than Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rk) such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in connection with any Collateral or any Loan PartyBorrower’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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 Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents and the LendersLender:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with a management’s discussion on consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating bases for the absence of footnotes, normal recording year-end adjustments, Borrower and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal YearSubsidiaries, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Borrower and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Lender;
(b) as soon as available, but and in any event not later than 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after the end of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary form;
(c) as soon as available, but in any event not later than within 30 days after the end of each month (including, without limitation, but within 45 days after the third last month of each in a Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis and consolidating bases for the Borrowers Borrower and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsadjustments and the absence of footnotes;
(ic) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Lender while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Borrower;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrower by independent its accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrower’s consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal YearsYear, month by month and for each Fiscal Year thereafter, year by year, and for such Fiscal Yearthrough June 30, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified herein2012;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any AgentLender’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Lender;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request after the receipt by any Loan Party of any Agentsuch notice from Frost or delivery of any such notice from any Loan Party to Frost, furnish to the Agents a copy copies of the most recent actuarial statement required to be submitted under §103(dany notices of default, event of default, acceleration or foreclosure (or any similar notice) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereofFrost Document;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as any Agent Lender may request from time to time in connection with any Collateral or any Loan Party’s, Subsidiary’s or the Subsidiaryother Obligor’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), ; and
(bk) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation to request the delivery or to maintain copies of the documents referred to aboveas soon as available, and in any event shall have no responsibility within 120 days after the close of each Fiscal Year, financial statements for each Guarantor that is not a Subsidiary, in form and substance satisfactory to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsLender.
Appears in 1 contract
Samples: Loan and Security Agreement (Craftmade International Inc)
Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event not later than (i) within 90 days after the close of each Fiscal Year, the unaudited (i) consolidated balance sheet sheets as of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders' equity for such Fiscal Year, along with a management’s discussion for Borrowers and analysis in connection with the foregoingGAAP Subsidiaries, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except for the absence of footnotes, normal recording year-end adjustments, and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Year, which consolidated financial statements shall be audited and certified (without qualification as to scope, “going concern” or similar itemsqualification) by a firm of independent certified public accountants of recognized standing selected by the Borrowers and acceptable to the Agents (it being acknowledged that KPMG LLP shall be acceptable to the Agents)Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to Agent, and (ii) to the Agents.extent the GAAP Subsidiaries include any Person that is not a Subsidiary, consolidated balance sheets as of the end of such Fiscal Year and the related consolidated statements of income, cash flow and shareholders' equity for such Fiscal Year, for Borrowers and Subsidiaries, certified by the chief financial officer of Borrower Agent, together with such financial statements prepared using first-in, first-out method of inventory accounting as certified by the chief financial officer of Borrower Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (including, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days)Quarter, unaudited consolidated balance sheets as of the end of such Fiscal Quarter and the related consolidated statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their GAAP Subsidiaries and, to the extent the GAAP Subsidiaries include any Person that is not a Subsidiary, for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Borrower Agent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to except for normal year-end adjustmentsadjustments and the absence of footnotes, along withtogether with such financial statements prepared using first-in, after first-out method of inventory accounting as certified by the end chief financial officer of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formBorrower Agent;
(c) as soon as available, but in any event not later than 30 days after the end of each month (including, without limitation, the third month of each Fiscal Quarter), unaudited balance sheets as of the end of such month and the related statements of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared in accordance with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments;
(i) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be testedabove, or more frequently if requested by the Agents Agent while an a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)Agent;
(ed) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports, if any, submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party Borrowers by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(fe) concurrently with delivery of financial statements under clause (b) above, as soon as available and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Borrowers' consolidated balance sheets, results of operations, cash flow, budgets flow and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(if) at any Agent’s 's request, a listing of each Loan Party’s Borrowing Base Obligor's trade payables (including, without limitation, with respect to the Xxxxxxx Debt)payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Borrower to the public concerning material changes to or developments in the business of such Loan PartyBorrower;
(kh) compliance certificates (or such other evidence of compliance) with the financial covenants and other terms of the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder), in each case, at the times and in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days promptly after the end sending or filing thereof, copies of any annual report to be filed in connection with each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthPlan or Foreign Plan;
(i) promptly upon request of any Agent, furnish to the Agents a copy of the most recent actuarial statement required to be submitted under §103(d) of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 or other similar document with all required attachments, in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(r) such other reports and information (financial or otherwise) as any Agent may request from time to time in connection with any Collateral or any Loan Party’s Borrower's, Subsidiary's or the Subsidiary’s other Obligor's financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or ;
(j) promptly after submission to any Governmental Authority, all material documents and information furnished to such Governmental Authority in connection with any investigation of any Borrower or any Subsidiary of a Borrower other than routine inquiries by such Governmental Authority and inquiries with respect to matters that would not have a Material Adverse Effect and except as prohibited by law; and
(to k) by November 30 of each year, an off-season reserve analysis for the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies remainder of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained hereinFiscal Year ending on March 31, in every instance the Borrowers shall be required form and detail consistent with past practices and satisfactory to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documentsAgent.
Appears in 1 contract
Financial and Other Information. Keep Each Loan Party will, and will cause its Restricted Subsidiaries to, keep adequate records and books of account with respect to its business activities, in which proper entries are made in all material respects in accordance with GAAP reflecting all financial transactions; and will furnish to the Agents Agent and the Lenders:
(a) as soon as available, but and in any event on or before the date on which such financial statements are required to be filed with the SEC (or, if such financial statements are not later than (i) required to be filed with the SEC, on or before the date that is 90 days after the close end of each such Fiscal Year), the unaudited consolidated balance sheet of the Borrowers Parent and their its Restricted Subsidiaries as at of the end of such Fiscal Year, Year and the related consolidated statement statements of income, shareholder’s equity, cash flows flow and same store sales performance metrics of the Borrowers and their Subsidiaries shareholders’ equity for such Fiscal Year, along with on a management’s discussion consolidated and analysis in connection with the foregoing, which statements shall be in reasonable detail and, other than with respect to such same store sales performance metrics, prepared in accordance with GAAP (except consolidating basis for the absence of footnotes, normal recording year-end adjustments, Parent and consolidation and elimination entries and intercompany charges), and in each case shall set forth in comparative form corresponding figures for the preceding Fiscal Year, the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents and (ii) the earlier of (x) 120 days after the close of each Fiscal Year and (y) the date on which the audited financial statements of the Borrowers and their Subsidiaries are provided to any other Person, consolidated balance sheet of the Borrowers and their Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of income, shareholder’s equity and cash flows of the Borrowers and their Subsidiaries for such Fiscal Yearits Restricted Subsidiaries, which consolidated financial statements shall be audited and certified (without qualification as other than a qualification with respect to scope, “going concern” or similar itemsDebt under this Agreement becoming due and payable by its terms within one year of such opinion with regard to the opinion for Fiscal Year 2016) by a firm of independent certified public accountants of recognized standing selected by the Borrowers Parent and acceptable to the Agents Agent (it being acknowledged provided that KPMG LLP shall be deemed acceptable to the AgentsAgent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and other information acceptable to the Agents.Agent;
(b) as soon as available, but and in any event not later than within 45 days after the end of each Fiscal Quarter of each Fiscal Year of the Borrowers (includingfirst three Fiscal Quarters of Parent, without limitation, the fourth Fiscal Quarter of each Fiscal Year of the Borrowers for which the deadline shall be 75 days), an unaudited balance sheets sheet as of the end of such Fiscal Quarter and the related statements of income and cash flows and same store sales performance metrics flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers Parent and their its Restricted Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant to Section 10.1.2(g) and certified by a Senior Officer the chief financial officer of the Borrowers Parent as prepared in accordance with GAAP (other than with respect to such same store sales performance metrics), and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments, along with, after adjustments and the end absence of the second Fiscal Quarter of each Fiscal Year, a management’s discussion and analysis in connection with the foregoing, provided that at the end of the first, third and fourth Fiscal Quarters the management’s discussion and analysis shall be in summary formfootnotes;
(c) as soon as available, but and in any event not later than within 30 days (or 45 days with respect to the month ending December 31) after the end of each month (includingother than the third, without limitation, the third month sixth and ninth months of each Fiscal QuarterYear), unaudited balance sheets as of the end of such month and the related statements statement of income and cash flows and same store sales performance metrics for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrowers each Borrower and their such Borrower’s Restricted Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and the most recent projections provided pursuant Year, which financial statements are not required to Section 10.1.2(g) and certified by a Senior Officer of the Borrowers as prepared be in accordance conformity with GAAP (other than such same store sales performance metrics), and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustmentsGAAP;
(id) concurrently with delivery of financial statements under clauses (a), ) and (b) and (c) above and (ii) at the end of each monthly period for which the financial covenant pursuant to Section 10.2.27 is required to be tested, or more frequently if requested by the Agents while an Event of Default existsabove, a Compliance Certificate executed by a Senior Officer the chief financial officer of each Borrower (with such certification to be in such Person’s capacity as a Senior Officer of such Borrower and not in such Person’s individual capacity)the North American Loan Party Agent;
(e) concurrently with delivery of financial statements under clause (a) above, and otherwise promptly after the request by any Agent, copies of any detailed audit reports or all management letters and other material reports submitted to the board Parent and any of directors (or the audit committee of the board of directors) of any Loan Party its Restricted Subsidiaries by independent their accountants in connection with the accounts or books of any Loan Party or any Subsidiary, or any audit of any of themsuch financial statements;
(f) concurrently with delivery of financial statements under clause (b) above, and otherwise promptly after the request by any Agent, a certificate of a duly authorized officer of each Borrower either confirming that there has been no change in such information since the date of the Schedules delivered on the Third Amendment Effective Date or the date of the most recent Schedules delivered pursuant to this Section and/or identifying such changes;
(g) from time to time upon request of any Agent, but in any event no not later than 30 days prior to the beginning end of each Fiscal Year of the BorrowersYear, draft projections of the Loan Parties’ Parent’s and its Restricted Subsidiaries consolidated balance sheets, results of operations, cash flow, budgets and availability under the credit facilities (including, without limitation, projections of Revolver Excess Availability) Availability for the next three Fiscal Years, year by year, and for such Fiscal Year, on a month by month basis, such draft projections to be made in good faith based on reasonable assumptions of the Borrowers at the time made; and from time to time upon request of any Agent, but in any event no later than 45 days following the beginning of each Fiscal Year of the Borrowers, final projections of the Loan Parties for each of the types of statements identified hereinmonth;
(h) concurrently with delivery of financial statements under clause (b) above, a report setting forth a listing of any new stores, offices or places of business of the Loan Parties since the delivery of the last such report;
(i) at any Agent’s request, a listing of each Loan Party’s trade payables (including, without limitation, with respect to the Xxxxxxx Debt), specifying the trade creditor and balance due, and a detailed trade payable aging;
(jg) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Loan Party has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Loan Party Restricted Subsidiary files with the Securities and Exchange Commission SEC or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Loan Party Parent or any Restricted Subsidiary to the public concerning material changes to or developments in the business of such Loan Partyentity;
(kh) compliance certificates promptly after the sending or filing thereof, copies of any annual information report (or such other evidence of compliance) with the financial covenants including all actuarial reports and other terms of the Revolving Loan Documents (schedules and attachments thereto) required to be filed with a Governmental Authority in connection with each U.S. Employee Plan, any Foreign Plan that is required by Applicable Law to be funded or any documents relating to renewalsCanadian Pension Plan; promptly upon receipt, refinancings copies of any notice, demand, inquiry or subpoena received in connection with any U.S. Employee Plan or Canadian Pension Plan from a Governmental Authority (other than routine inquiries in the course of application for a favorable IRS determination letter); and extensions of the Debt incurred thereunder), in each case, at the times and Agent’s request, copies of any annual report required to be filed with a Governmental Authority in the forms delivered to the agents and/or the lenders under the Revolving Loan Documents (connection with any other U.S. Employee Plan or any documents relating to renewals, refinancings and extensions of the Debt incurred thereunder);
(l) within fifteen (15) days after the end of each calendar month in each Fiscal Year of the Borrowers, a certification by a Senior Officer of each Borrower, in form and substance reasonably satisfactory to the Agents, (i) that all rent payments of the Borrowers and their Subsidiaries have been made, (ii) that no lease defaults exist for such period, (iii) as to the amount of outstanding consignment accounts payable for such calendar month and the book value determined in accordance with GAAP of Inventory held on a consignment basis, and (iv) describing the long-term debt of the Borrowers and their Subsidiaries as of the end of such calendar monthCanadian Pension Plan;
(i) promptly upon request of any Agentfollowing receipt, furnish to the Agents a copy of any notice from the most recent actuarial statement required Pensions Regulator in which it proposes to be submitted under §103(d) take action which may result in the issuance of ERISA, other Applicable Pension Legislation and Annual Report, Form 5500 a Contribution Notice or other similar document with all required attachments, Financial Support Direction in respect of each Guaranteed Pension Plan and Canadian Plan, (ii) promptly upon receipt or dispatch, furnish to the Agents any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan under §4041A, 4202, 4219, 4242, or 4245 of ERISA or in respect of a Canadian Plan or other similar provisions of Applicable Pension Legislation, (iii) promptly deliver to the Agents all information required to be reported to the PBGC under Section 4010 of ERISA, (iv) promptly deliver to the Agents such other documents or governmental reports or filings relating to any Guaranteed UK Pension Plan, Multiemployer Plan or Canadian Plan as the Agents shall reasonably request and (v) promptly following any request therefor, on and after the effective date of the Pension Protection Act of 2006, the Borrowers shall deliver to the Agents copies of any documents or notices described in Sections 101(j), (k) or (l) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Guaranteed Pension Plan or Multiemployer Plan, as applicable; provided, that if the Borrowers or any ERISA Affiliate have not requested such documents or notices from the administrator of sponsor of the applicable Guaranteed Pension Plan or Multiemployer Plan, the Borrowers or ERISA Affiliate shall, upon request from any Agent, promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) promptly upon delivery thereof, copies of all documents and materials of a material financial nature or otherwise provided to any other creditor of any Loan Party or any Subsidiary, including but not limited to any items delivered pursuant to the Revolving Credit Agreement;
(o) promptly upon request therefor, all information pertaining to the Loan Parties and their Subsidiaries reasonably requested by any Lender in order for such Lender to comply with the provisions of the Patriot Act;
(p) to the extent that Revolver Excess Availability is less than $5,000,000 for five (5) consecutive Business Days, at the request of Agent, a thirteen (13) week cash flow report;
(q) promptly but in any event no later than ten (10) days after any Loan Party’s entry into any consignment arrangement (whether such consignment arrangement is documented or otherwise) in which such Loan Party acts as a consignee (including, without limitation, pursuant to Section 4.1 of the Xxxxxxx Distribution Agreement), notify the Agents in writing of such consignment arrangement, specifying the consignor, the consignee, the term of the consignment arrangement, the goods to be consigned and any other material terms of such arrangements and, at the request of any Agent, promptly deliver true, complete and accurate copies of such consignment agreement and related documents and any amendments, modifications, supplements, waivers or other modifications thereof; and
(rj) such other reports and information (financial or otherwise) as any the Agent may request from time to time in connection with any Collateral or Parent’s, any Loan Party’s or the any Restricted Subsidiary’s financial condition or business. Documents required to be delivered pursuant to Sections 10.1.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address indicated in writing to the Agents and the Lenders by the Borrower Agent; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third-party website or whether sponsored by any Agent); provided that: (i) such Borrower shall deliver paper copies of such documents to the Agents or any Lender that requests such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) such Borrower shall notify the Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agents and the Lenders by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates to the Agents and the Lenders. Except for such Compliance Certificates, no Agent shall have any obligation 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 Borrowers 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
Samples: Loan, Security and Guarantee Agreement (Edgen Group Inc.)
