Financial Statements and Other Information The Guarantor will furnish to the Administrative Agent (which, except as otherwise provided below with respect to subsections (a), (b) or (e), the Administrative Agent shall promptly furnish to each Lender):
(a) within 120 days after the end of each fiscal year of the Guarantor, its audited Consolidated balance sheet and related statements of operations, shareholders’ equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or other independent public accountants of internationally recognized standing in a manner complying with the applicable rules and regulations promulgated by the SEC;
(b) (i) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Guarantor, its Consolidated balance sheet and related statements of operations and cash flows for such fiscal quarter and the related statements of operations and cash flows for the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year, all certified as to GAAP (subject to the absence of footnotes, audit and normal year-end adjustments) on behalf of the Guarantor by the chief financial officer or the chief accounting officer of the Guarantor or a Designated Officer; (ii) as and when filed with the SEC, for any of the first three fiscal quarters of each fiscal year of the Guarantor which fiscal year ends on or prior to the date of the Electronics Spin Distribution, the combined balance sheet and related statements of income of certain electronics related subsidiaries and businesses of the Guarantor for such fiscal quarter, certified by the chief financial officer of the electronics businesses of the Guarantor; and (iii) as and when filed with the SEC, for any of the first three fiscal quarters of each fiscal year of the Guarantor during which quarter the Electronics Spin Distribution occurs, the statement of income of the Guarantor for such fiscal quarter, certified as to GAAP (subject to the absence of footnotes, audit and normal year-end adjustments) on behalf of the Guarantor by the chief financial officer or the chief accounting officer of the Guarantor or a Designated Officer;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate on behalf of the Guarantor signed by the chief financial officer or the chief accounting officer of the Guarantor or a Designated Officer (i) certifying 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, and (ii) setting forth reasonably detailed calculations demonstrating whether the Guarantor was in compliance with Section 5.09;
(d) within five Business Days after any Responsible Officer obtains knowledge of any Default, if such Default is then continuing, a certificate on behalf of the Guarantor signed by a Responsible Officer of the Guarantor or a Designated Officer setting forth, in reasonable detail, the nature thereof and the action which the Guarantor is taking or proposes to take with respect thereto;
(e) promptly upon the filing thereof, copies of all final registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent), final reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and proxy statements which the Guarantor or the Borrower shall have filed with the SEC;
(f) promptly upon any Responsible Officer obtaining knowledge of the commencement of any Reportable Action, a certificate on behalf of the Guarantor specifying the nature of such Reportable Action and what action the Guarantor is taking or proposes to take with respect thereto; and
(g) from time to time, upon reasonable notice, such other information regarding the financial position or business of the Guarantor and its Subsidiaries, or compliance with the terms of this Agreement, as any Lender through the Administrative Agent may reasonably request. Information required to be delivered pursuant to subsections (a), (b) or (e) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Guarantor posts such documents, or provides a link thereto on the Guarantor’s website on the Internet at xxx.xxxx.xxx (or such other website as the Guarantor may designate in the Guarantor Assumption Agreement or in a writing delivered to the Administrative Agent), or at xxx.xxx/xxxxx/xxxxxxxx.xxx; or (ii) on which such documents are posted on the Guarantor’s behalf, or delivered to the Administrative Agent by the Guarantor in accordance with Section 10.15.
Financial Statements; Borrowing Base and Other Information The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:
(a) within 90 days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of Holdings (in the case of the fiscal year ending December 31, 2007) and each fiscal quarter for the fiscal year ending December 31, 2008 and each fiscal year of Holdings thereafter), commencing with the fiscal quarter ended June 30, 2007 (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period), its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, 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 (compared to the financial statements of Edgen/Murray L.P. and its comparable subsidiary until the 2008 fiscal year), all certified by one of the Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 days after the end of each fiscal month (other than for the third, sixth and ninth month of any fiscal year) (i) of the US Borrower, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, 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 such period or periods of) the previous fiscal year and (ii) each of the UK Borrower, the UAE Borrower and the Singapore Borrower on an individual (non-consolidated) basis for each such Person, its balance sheet and related statements of operations and a schedule of distributions and Capital Expenditures, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period of (or, in the case of the balance sheet, as of the end of such period or periods of) the previous fiscal year.
(d) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F (i) certifying, in the case of the financial statements delivered under clause (b), as presenting fairly in all material respects the financial condition and results of operations of each Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying 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, (iii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) in the case of financial statements delivered under clause (a) only, stating whether any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) as soon as available, but in any event not more than 30 days prior to the end of each fiscal year of each Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower for each month of the upcoming fiscal year (“Projections”) in form reasonably satisfactory to each Agent;
(f) as soon as available but in any event within 30 days of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as of the period then ended, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing Base, Canadian Borrowing Base, UAE Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base as any Agent may reasonably request;
(g) as soon as available but in any event within 30 days of the end of each calendar month and at such other times as may be requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by due date (with a report of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent together with a summary specifying the name and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A) by location (showing any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category and by value on hand, which Inventory shall be valued at the lower of weighted-average cost or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate, (B) including a report of any variances in excess of $50,000 and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) 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;
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 days of the end of each calendar month (as of the month then ended), an accounts payable forecast or aging consisting of a break down of accounts by due date in a form substantially similar to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing Date;
(i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(j) promptly upon any Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(iv) copies of each Borrower’s and each Eligible Subsidiary’s sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and
(v) a detailed listing of all advances of proceeds of Loans requested by the Borrower Representative for each Borrower during the immediately preceding calendar month and a detailed listing of all intercompany loans made by the Borrowers during such calendar month.
(k) as soon as possible and in any event within 30 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service or the relevant tax authority of any foreign jurisdiction;
(l) within 30 days of each March 31 and September 30, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borrower;
(m) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries to its public shareholders generally, as the case may be;
(n) promptly upon the request of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address and balance due for each Account Debtor; and
(o) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as any Agent may reasonably request. Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default or during any period in which the aggregate US Availability and Canadian Availability is less than $25,000,000 or UK Availability is less than $10,000,000, the Administrative Agent, in its sole discretion, may require the delivery of the reports, certificates and other documents required by Sections 5.01(f), (g), and (h) (with respect to the US Borrowers, UK Borrower or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificates.
Financial and Other Information To provide the following financial information and statements and other information:
(a) Within 90 days following the end of each fiscal year of Borrower, Borrower's consolidated annual financial statements. These financial statements must be audited (with an unqualified opinion) by Ernst & Young, LLP or another nationally recognized firm of independent public accountants reasonably acceptable to Bank and must be accompanied by a management letter prepared by such auditors.
(b) Within 30 days following the end of each calendar month (including the last calendar month in each fiscal year), Borrower's monthly consolidated and consolidating financial statements showing results for that month and for a year to date basis, PROVIDED THAT if no Default or Event of Default has then occurred, following the delivery of Borrower's audited financial statements for the fiscal year ending December 31, 1998, Borrower shall instead, within 45 days following the end of each fiscal quarter (including the last fiscal quarter in each fiscal year) deliver its quarterly consolidated and consolidating financial statements showing results for that fiscal quarter and on a year to date basis. In either case, these financial statements may be Borrower prepared, and shall include a comparison to plan and prior year on a monthly and year to date basis.
(c) If requested by Bank, copies of Borrower's federal income tax return, promptly and in any event within 15 days of filing, and copies of any extensions of the filing date.
(d) Within the period provided for in clause (a) (in relation to Borrower's audited statements and giving effect to any adjustments from the unaudited statements made therein) and promptly and in any event within 45 days following the last day of each fiscal quarter (in relation to the unaudited statements and including the last fiscal quarter in each fiscal year) a compliance certificate signed by an authorized financial officer of Borrower setting forth information and computations (in sufficient detail) to establish (x) that Borrower is in compliance with all financial covenants at the end of the period covered by the financial statements then being furnished, and (y) whether there existed as of the date of such financial statements and whether there exists as of the date of the certificate, any Default or Event of Default under this Agreement and, (iii) if any such Default or Event of Default exists, specifying the nature thereof and the action Borrower is taking and propose to take with respect thereto.
(e) A borrowing base certificate ("Borrowing Base Certificate") setting forth the respective amounts of Acceptable Receivables and Acceptable Inventory and a calculation of the Borrowing Base as of the last day of each month within 20 days after month end and, if requested by Bank copies of the invoices or the record of invoices from each Borrower's and HP UK's sales journal for such Acceptable Receivables, copies of the delivery receipts, purchase orders, shipping instructions, bills of lading and other documentation pertaining to such Acceptable Receivables.
(f) (Statements showing an aging and reconciliation of Borrower's and HP UK's receivables within 20 days after the end of each month.
(g) A statement showing an aging of accounts payable within 20 days after the end of each month.
(h) If Bank requires Borrower and its Subsidiaries to deliver the proceeds of accounts receivable to Bank upon collection by Borrower and its Subsidiaries, a schedule of the amounts so collected and delivered to Bank.
(i) An inventory summary report and listing within 20 days after the end of each month, including a description of the inventory, its location and cost, and such other information and collateral reports as Bank may require.
(j) A listing of the names and addresses, telephone numbers and principal contacts of all debtors obligated upon Borrower's and its Subsidiaries accounts receivable semi-annually within 20 days following the last day of the second and fourth fiscal quarters in each of Borrower's fiscal years.
(k) 30 days prior to each fiscal year end, updated annual financial projections for Borrower and its Subsidiaries through December 31, 2004, and quarterly financial projections through the subsequent fiscal year.
(l) Within 90 days following the Closing Date, an audited opening consolidated balance sheet of Borrower prepared by Ernst & Young LLP.
(m) Promptly upon Bank's request, such other statements, lists of property and accounts, budgets, forecasts or reports as to Borrower as Bank may reasonably request.
(n) Annually and in any event not later than January 1 of each year, commencing with January 1, 1998, an environmental compliance audit prepared by consultants acceptable to Bank, which audit shall (i) be prepared at the sole cost and expense of Borrower and (ii) detail areas of environmental non-compliance, types of environmental permits and licenses required and held by Borrower, and upgrades to programs, permits and licenses required or to be considered by Borrower due to changes in environmental regulations. The environmental compliance audit shall identify, to a degree of certainty "more likely than not" any conditions or operations that meet the foregoing criteria.
(q) Promptly and in any event within 5 days following the filing thereof, copies of Borrower's reports on Form 10-K and Form 10-Q and all other material reports filed by Borrower with the Securities and Exchange Commission.
(r) On a monthly basis until HPUK has vacated the Heathrow Airport location leased from British Airways, not later than the 5th day of each calendar month, (i) a copy of a receipt issued by British Airways for rent paid with respect to that location for that calendar month and (ii) a narrative description of the progress of Borrower's and HP UK's efforts to relocate the operations of HP UK from Heathrow Airport, and an update of the timetable for that relocation.
(s) Promptly upon Bank's request, such other information as Bank may reasonably request.
