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.
Appears in 5 contracts
Samples: Credit Agreement (Edgen Group Inc.), Credit Agreement (Edgen Group Inc.), Credit Agreement (Edgen Group Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, and in the case of documents and Agent (which will promptly furnish such information required to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Collateral Agent and the Singapore Administrative Agent, as applicable:Lenders):
(a) within 90 one-hundred-five (105) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related consolidated statements of operations, partners’ equity operations and cash flows and stockholders’ equity as of the end of and for such year, setting forth in each case case, commencing with the financial statements for the fiscal year ending December 31, 2008, in comparative form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent public accountants of recognized national standing and reasonably acceptable to the Required Lenders Administrative Agent (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 fairly, in all material respects respects, the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(b) within 45 forty-five (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)Borrower, its consolidated and consolidating balance sheet and related consolidated statements of operations, partners’ equity operations and cash flows and stockholders’ equity as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case case, commencing with the financial statements for the fiscal year ending December 31, 2008, 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 its Financial Officers of the Borrower Representative as presenting fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 forty-five (45) 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 first two fiscal months of each fiscal quarter of the Borrower, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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 of) the corresponding 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D, (i) certifying, in the case certifying that no Event 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 or Default has occurred andduring the period to which such financial statements relate or, if a an Event of Default or Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, thereto and (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) forth, in the case of the financial statements delivered under clause (a) onlyor (b), stating whether any change in GAAP or in the application thereof has occurred since the date reasonably detailed calculations of the prior fiscal year’s audited Fixed Charge Coverage Ratio (whether or not a Liquidity Event then exists) as of the end of the period to which such financial statements and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificaterelate;
(e) concurrently with any delivery of financial statements under clause (a) above with respect to a period during which a Liquidity Event existed, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default under Section 6.13 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) within ninety (90) days after the beginning of each fiscal year, a reasonably detailed consolidated budget of the Borrower and its Subsidiaries by quarter for such fiscal year (including a projected consolidated balance sheet and the related consolidated statements of projected cash flows and projected income, by quarter), including a summary of the underlying material assumptions with respect thereto (collectively, the “Budget”), and, as soon as available, but significant revisions, if any, of such Budget, which Budget or revisions thereto shall in any event not more than 30 days prior each case be accompanied by the statement of a Financial Officer of the Borrower to the end effect that, to the best of each fiscal year of each Borrowerhis knowledge, the Budget is a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower reasonable estimate 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 requestcovered thereby;
(g) as soon as available but in any event within 30 days of on or prior to the end 10th Business Day of each calendar fiscal month and at such other times (or more frequently as the Borrower may be requested by the Administrative Agentelect), a Borrowing Base Certificate as of the period then endedclose of business on the last day of the immediately preceding fiscal month (or in the case of a voluntary delivery of a Borrowing Base Certificate at the election of the Borrower, all delivered electronically a subsequent date), together with such supporting information in a text or Microsoft Excel formatted file acceptable to each Agent:
connection therewith as the Agents may reasonably request, which may include, without limitation, (i) a detailed aging of the Borrowers’ Inventory reports by category 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 location, together with a summary specifying reconciliation to the name and balance due for each Account Debtor;
corresponding Borrowing Base Certificate, (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 reasonably detailed calculation 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;
(iviii) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible SubsidiaryBorrower’s general stock ledger and financial statements and the any Inventory reports delivered pursuant to clauses clause (i) above, (iv) a reasonably detailed calculation of Eligible Trade Receivables, and (ii) above; and
(v) a reconciliation reasonably detailed aging of the loan balance per the BorrowersLoan Parties’ general ledger Accounts and a reconciliation to the loan balance under this Agreementcorresponding Borrowing Base Certificate; provided that upon the occurrence and during the continuance of an Event of Default or if Excess Availability is at any time less than $15,000,000, the Borrower shall deliver a Borrowing Base Certificate and such supporting information as is reasonably practicable to provide on a weekly basis on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and provided further, that any Borrowing Base Certificate delivered other than with respect to month’s end may be based on such estimates by the Borrower of Shrink and other amounts as the Borrower may deem necessary;
(h) as soon as available but in any event within 30 days practicable upon the reasonable request 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 (but no more frequently than once per calendar year), deliver an updated Perfection Certificate (or, to the Closing Dateextent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (i) or Section 5.10;
(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 publicly filed by any Loan Party Holdings, Holdings’ immediate parent or any Subsidiary of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said CommissionSEC, or with any national securities exchange, or, after an initial public offering of shares of Capital Stock of Holdings, Holdings’ immediate parent or the Borrower, distributed by any Loan Party or its Subsidiaries the applicable entity to its public shareholders generally, as the case may be;
(nj) promptly promptly, a copy of any final “management letter” received from the Borrower’s independent public accountants to the extent such public accountants have consented to the delivery of such management letter to the Agents upon the request of the Borrower;
(k) promptly following the Administrative Agent’s request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(l) promptly following any request therefor, on and after the effectiveness of the Pension Act, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or the Singapore Administrative Agent or the UAE Administrative agent any of its ERISA Affiliates may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Plan or Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the Singapore applicable Plan or Multiemployer Plan, Borrower or its ERISA Affiliates shall promptly make a request for such documents or notices from the such administrator or sponsor and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address shall provide copies of such documents and balance due for each Account Debtornotices promptly after receipt thereof; and
(om) as promptly as reasonably practicable from time to time following any the Administrative Agent’s request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Holdings, the Borrower or any Subsidiary, or compliance with the terms of this Agreementany Loan Document, as any the Administrative Agent may reasonably requestrequest (on behalf of itself or any Lender). Notwithstanding the foregoing, upon the occurrence obligations in clauses (a) and during (b) of this Section 5.01 may be satisfied with respect to financial information of the continuance Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of an Event Holdings (or any direct or indirect parent of Default Holdings) or during (B) the Borrower’s or Holdings’ (or any period direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), (i) to the extent such information relates to Holdings (or a parent thereof), such information is accompanied by consolidating information that explains in which reasonable detail the aggregate US Availability differences between the information relating to Holdings (or such parent), on the one hand, and Canadian Availability the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is less than $25,000,000 in lieu of information required to be provided under clause (a) of this Section 5.01, such materials are accompanied by a report and opinion of Ernst & Young LLP or UK Availability is less than $10,000,000, other independent public accountants of recognized national standing and reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in its sole discretionaccordance with generally accepted auditing standards 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. Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 9.01; (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) the date on which executed certificates or other documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may require be by facsimile or electronic mail) the delivery Administrative Agent of the reports, certificates posting of any such documents and other documents required by Sections 5.01(f), (g), and (h) (with respect provide to the US BorrowersAdministrative Agent by electronic mail electronic versions (i.e., UK Borrower or Canadian Borrowersoft copies) 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 certificatesdocuments.
Appears in 3 contracts
Samples: Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (Tube City IMS CORP)
Financial Statements; Borrowing Base and Other Information. The Borrowers Company 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 reasonably acceptable to the Required Lenders Administrative Agent (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such auditaudit other than any qualification regarding the adoption of accounting pronouncements) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter provided that the delivery within the time period specified above of the Company’s Form 10-K for such fiscal year (together with the Company’s annual report to shareholders, if any, prepared by said accountantspursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements therefore and filed with the SEC shall be deemed to satisfy the requirements of this Section 5.01(a); and provided further, that the Company shall be deemed to have made such delivery of such Form 10-K if it shall have timely made such Form 10-K available on “XXXXX” and on its home page on the worldwide web (at the date of this Agreement located at xxx.xxxxxxxxxxxxxxx.xxx) and shall have given Administrative Agent prior notice of such availability on XXXXX and its home page in connection with each delivery (such availability and notice thereof being referred to as “Electronic Delivery”);
(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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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, provided that delivery within the time period specified above of copies of the Company’s Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 5.01(b); and provided further that the Company shall be deemed to have made such delivery of such Form 10-Q if it shall have timely made Electronic Delivery thereof;
(c) if on any day in any fiscal month Availability is less than the Changeover Amount, 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 Borrowerimmediately preceding month, (ii) such month and (iii) each succeeding month until Availability has exceeded the Changeover Amount for 90 consecutive days, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (a “Compliance Certificate”) (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 6.12, if applicable, (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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate and (v) setting forth (only in the case of certificates delivered concurrently with financial statements delivered pursuant to (a) or (b) above) a computation of Average Availability for the applicable fiscal quarter end;
(e) as soon as available, but in any event not more than within 30 days prior to immediately following the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company for each month quarter of the upcoming then current fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 25 days of the end of each calendar monthmonth (or, at any time Availability is less than the Changeover Amount, at the end of each calendar week, and at the end of each calendar week thereafter until Availability has exceeded the Changeover Amount for 90 consecutive days) and at such other times as may be necessary to re-determine availability of Advances hereunder or 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 the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 25 days of the end of each calendar month (or, at any time Availability is less than the Changeover Amount, at the end of each calendar week, and at the end of each calendar week thereafter until Availability has exceeded the Changeover Amount for 90 consecutive days) 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 the Administrative Agent:
(i) a detailed schedule and aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent 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 the Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative Company are deemed by the Administrative Agent to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Loan Parties since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Loan Parties and complaints and claims made against the Loan Parties), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Company 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 BorrowersLoan Parties’ 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 BorrowersLoan Parties’ 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 the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivi) copies as soon as available but in any event within 25 days of the end of each Borrower’s calendar month and each Eligible Subsidiary’s at such other times as may be requested by the Administrative Agent, as of the period then ended, the Loan Parties’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and;
(vj) a detailed listing upon request 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 thereofAdministrative Agent, 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 jurisdictionService;
(lk) within 45 days after each June 30 days of each March 31 and September starting June 30, 2008, an updated customer list for each the Borrower and its SubsidiariesSubsidiaries as of June 30, 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 BorrowerCompany; provided, however, that such list with respect to Broyhill Furniture Industries, Inc. shall also be furnished as soon as practicable after the date hereof;
(l) within 45 days after the last day of June of each year, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(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 the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding provided that in each case the Company shall be deemed 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 Debtorhave made such delivery if it shall have made Electronic Delivery thereof; and
(on) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender 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.
Appears in 3 contracts
Samples: Credit Agreement (Furniture Brands International Inc), Credit Agreement (Furniture Brands International Inc), Credit Agreement (Furniture Brands International Inc)
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 applicableeach Lender:
(a) within 90 120 days after the end of each fiscal year Fiscal Year of Holdingsthe U.S. Borrower (or, if earlier, the date provided to the holders of the U.S. Borrower’s equity or debt securities generally), its audited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal 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 the U.S. Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied . The U.S. Borrower shall be deemed to have delivered the financial statements required to be delivered pursuant to this Section 5.01(a) upon the filing of such financial statements by the U.S. Borrower through the SEC’s XXXXX system (or any management letter prepared successor electronic gathering system) or the publication by said accountantsthe U.S. Borrower of such financial statements on its website;
(b) (i) within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of Holdings (in the case each Fiscal Year of the fiscal year ending December 31U.S. Borrower, 2007its consolidated and consolidating balance sheet (including a summary of stockholders’ equity as customarily shown on a balance sheet) and each fiscal quarter for related statements of operations and cash flows, and, (ii) if Availability during any Fiscal Month is at any time less than the fiscal year ending December 31Minimum Excess Availability Amount, 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 within 30 days after the end of such quarterly period)Fiscal Month, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows in each case, as of the end of and for such fiscal quarter Fiscal Quarter or Fiscal Month, as the case may be, and the then elapsed portion of the fiscal yearsuch 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)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 the U.S. Borrower 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 footnotesfootnotes (it being acknowledged and agreed that such quarterly and monthly financial statements will not be subsequently audited on a quarterly or monthly basis). The U.S. Borrower shall be deemed to have delivered the financial statements required to be delivered pursuant to this Section 5.01(b) upon the filing of such financial statements by the U.S. Borrower through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the U.S. Borrower of such financial statements on its website;
(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 D (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 the U.S. 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 footnotesfootnotes (it being acknowledged and agreed that such quarterly and monthly financial statements will not be subsequently audited on a quarterly or monthly basis), (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 6.14 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 referred to in Section 3.04 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.
Appears in 3 contracts
Samples: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
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, partnersstockholders’ 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 Deloitte & Touche LLP or another independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification or exception (other than with respect to the current maturity of the Obligations in the case of the audit for the fiscal year ending December 31, 2016 in the event such maturity is not extended) 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 Restricted 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)Holdings, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officer of the Financial Officers of the Borrower Representative Holdings as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Restricted 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 Holdings in substantially the form of Exhibit F C (a “Compliance Certificate”) (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 Holdings and its consolidated Restricted 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 a reasonably detailed calculations calculation of the Fixed Charge Coverage Ratio for the most recently ended four fiscal quarters (whether or not during a Covenant Trigger Period) and, if applicable, demonstrating compliance with Section 6.13 and 6.12, (iv) the amount of any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate or any change in the case amount of financial statements delivered under clause 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 and (av) 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 referred to in Section 3.04 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.
Appears in 2 contracts
Samples: Credit Agreement (Interline Brands, Inc./De), Credit Agreement (Interline Brands, Inc./De)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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) by November 30, 2019 for fiscal year 2018 and within 90 one hundred and eighty (180) days after the end of each fiscal year of Holdingsthe Borrower thereafter, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary or exception 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 the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said such accountants;
(b) within 45 forty-five (45) days after the end of each fiscal quarter 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, except for non-compliance with FAS 123R and 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 Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (a) or (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, except, in the case of the financial statement delivered under clause (b) above, for non-compliance with FAS 123R and 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 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) as soon as available, but in any event not more no later than 30 sixty (60) days prior to after the end commencement of each fiscal year of each the Borrower or such later date as such plan is approved by the Borrower, ’s board of directors (with prompt notice thereof to the Administrative Agent) a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each the Borrower for each month quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fe) as soon as available but in promptly following any event within 30 days request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the end board of each calendar monthdirectors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, and at such other times or any audit of any of them 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
(of) promptly following any reasonable request therefor, (x) such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender (through Administrative Agent) may reasonably request. Notwithstanding request and (y) information and documentation reasonably requested by the foregoingAdministrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, upon including the occurrence USA PATRIOT Act and during the continuance Beneficial Ownership Regulation;
(g) promptly after any reasonable request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
(h) concurrently with any delivery of financial statements under clause (b) above, a certification from a Responsible Officer of the Borrower, of the amount of cash and Permitted Investments of the Borrower held with banks and financial institutions other than Administrative Agent as permitted by Section 5.11; Documents required to be delivered pursuant to Section 5.01(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX); or (ii) on which such documents are posted on the Borrower’s behalf on an Event of Default Internet or during any period in intranet website, if any, to which each Lender and the aggregate US Availability and Canadian Availability is less than $25,000,000 Administrative Agent have access (whether a commercial, third-party website or UK Availability is less than $10,000,000, whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower, in its sole discretionthe Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, may require as applicable, and (B) the Borrower shall notify the Administrative Agent (by facsimile or through an Electronic System) of the posting of any such documents and provide to the Administrative Agent through an Electronic System electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by the Borrower with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocument to it and maintaining its copies of such documents.
Appears in 2 contracts
Samples: Credit Agreement (Roblox Corp), Credit Agreement (Roblox Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Representative 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 one hundred twenty (120) days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ equity and cash flows and consolidating balance sheet and income statement 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 Accountants (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 and consolidating financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsAccountants;
(b) within 45 forty-five (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)Holdings, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows and consolidating balance sheet and income statement 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 its 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 and consolidating 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 Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (a) or (b), as presenting fairly in all material respects the financial condition and results of operations of each Borrower Holdings 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 7.12, 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 referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) within one hundred and twenty (120) days after the end of each fiscal year of each Operating Company, its management prepared consolidating balance sheet and related statements of operations as of the end of and for the fiscal year most recently ended, setting forth in each case in comparative form the figures 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 such Operating Company 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;
(e) as soon as available, but in any event not more later than 30 ninety-two (92) days prior to after the end beginning of each fiscal year of each BorrowerHoldings, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement and a consolidating balance sheet and income statement) of each Borrower Holdings for each month of the upcoming such fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 thirty (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 consolidating Borrowing Base Certificate and a UK Borrowing Base Certificate, for the Operating Companies 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 the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 thirty (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 format acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiaryeach Operating Company’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and and, if requested by the Administrative Agent, (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) if requested by the Administrative Agent, a schedule detailing the Inventory of each Borrowers’ and each Eligible Subsidiary’s InventoryOperating Company, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by each Operating Company since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by such Operating Company and complaints and claims made against such Operating Company), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Borrower Representative 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’ each Operating Company’s Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible Subsidiarysuch Operating Company’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’ Borrower Representative’s general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 thirty (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 month then ended), an a schedule and aging of each Operating Company’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(i) within 30 days of if requested by the end of each calendar monthAdministrative Agent, a report listing list of all outstanding Swap Obligations as of customer names, addresses and contact information, delivered in a format acceptable to the month then endedAdministrative Agent;
(j) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers any Operating Company in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory purchased by any Loan Party;; and
(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 promptly following the U.S. Internal Revenue Service or the relevant tax authority formation of any foreign jurisdictionSubsidiary, information regarding such Subsidiary so that such Subsidiary may become a Loan Party;
(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 Holdings 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
(om) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrowers or any Subsidiary, or compliance with the terms of this Agreement, as any the Administrative Agent may reasonably request. Notwithstanding ; and
(n) in lieu of providing hard copies of the foregoingdocuments Holdings is required to deliver pursuant to paragraph (l) above, Holdings shall be deemed to have delivered the reports, proxy statements and other material to the Administrative Agent at such time such reports, proxy statements and other material are posted to the internet or filed with the Securities and Exchange Commission; provided, however, access to such documents must be (i) available free of charge; (ii) exist in a format downloadable by the Administrative Agent (as determined by the Administrative Agent); and (iii) downloadable by the Administrative Agent or if such statements are not in a format downloadable by the Administrative Agent then 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, notice by 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 Holdings will provide copies of such certificatespostings or filings.
Appears in 2 contracts
Samples: Credit Agreement (Smith & Wesson Holding Corp), Credit Agreement (Smith & Wesson Holding Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required Agent (to be delivered made available by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and to each Lender either by posting such documents on Intralinks or other electronic transmission system or by other method selected by the Singapore Administrative Agent, as applicable) the following information:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and reasonably 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsaccountants (it being understood that the information required by this Section 5.01(a) may be furnished in the form of the Company’s annual report on Form 10-K filed with the United States Securities and Exchange Commission for the applicable fiscal year (so long as the financial statements and independent public accountants report thereon comply with the requirements set forth above));
(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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 the Company 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 footnotesfootnotes (it being understood that the information required by this Section 5.01(b) may be furnished in the form of the Company’s quarterly report on Form 10-Q filed with the United States Securities and Exchange Commission for the applicable fiscal quarter (so long as the financial statements and certification thereof comply with the requirements set forth above));
(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 BorrowerCompany, its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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, 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 the Company 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; provided that financial statements shall be deliverable under this clause (c) only for the period(s) commencing on such date, if any, as Aggregate Availability is less than $30,000,000 and ending on such date, if any, as Aggregate Availability is at least $30,000,000 for a period of 10 consecutive Business Days.
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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) onlyor (b) above, setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio for the fiscal quarter most recently ended and, if applicable, demonstrating compliance with Section 6.13 and (iv) 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 referred to in Section 3.04 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.
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required Agent (with copies to be delivered provided to each Lender 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or another registered public accountants accounting firm 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 C (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 the Company 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 6.15 (to the extent applicable) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, but in any event not more than 30 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available available, but in any event within 30 days 15 Business Days of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as month (or within three Business Days of the period then endedend of each week at any time during a Level 3 Minimum Aggregate Availability Period), an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore UK Borrowing Base Certificate and a UK Dutch Borrowing Base Certificate, in each case which calculates such Borrowing Base, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, Canadian Borrowing Base, UAE the UK Borrowing Base Certificate, Singapore or the Dutch Borrowing Base of a Borrower as the Administrative Agent or either Collateral Agent may reasonably request; provided that no UK Borrowing Base Certificate or UK Dutch Borrowing Base as any Agent may reasonably requestCertificate or additional reports with respect thereto shall be required if the European Sublimit shall have been terminated;
(g) as soon as available but in any event within 30 days 15 Business Days of the end of each calendar month (or, except as otherwise provided for on Schedule 5.01(g), within three Business Days of the end of each week at any time during a Xxxxx 0 Xxxxxxx Xxxxxxxxx Availability Period) and at such other times as may be reasonably requested by the Administrative Agent or either Collateral 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;
Supplemental Documentation. (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 45 days of each March 31 and September 30, in the case of the US Loan Parties, and concurrently with any delivery of financial statements under paragraphs (a) and (b) above (or within 15 days of the end of each calendar month during any European Full Cash Dominion Period, in the case of the European Loan Parties), an updated customer list for each Borrower and its SubsidiariesLoan Party, which list shall state the customer’s name, mailing address and phone number (to the extent available) and shall be certified as true and correct in all material respects by a Financial Officer of the applicable BorrowerBorrower Representative;
(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
(oi) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower 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, either Collateral Agent or any Lender (through the Administrative Agent) 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 certificatesreasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
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) on or before the date upon which the Company’s annual report on Form 10-K is required to be filed with the SEC (and in any event within 90 105 days after the end of each fiscal year of HoldingsFiscal Year), its the Company’s (i) audited consolidated balance sheet and related statements of operationsincome, partnersstockholders’ equity and cash flows flows, showing the financial condition of the Company and the Subsidiaries on a consolidated basis as of the end close of such Fiscal Year and for the results of their operations during such yearFiscal Year, setting forth in each case in comparative form the figures such consolidated financial statements to be audited for the previous fiscal year, all reported on Company and the Subsidiaries by Deloitte & Touche LLP or other independent public accountants of recognized national standing and acceptable to the Required Lenders accompanied by an audit opinion of such accountants (without (A) a “going concern” or like qualification qualification, exception or exception explanatory paragraph and without (B) any qualification or exception as to the scope of such audit) and to be certified by a Financial Officer of the Company to the effect that such consolidated financial statements fairly present fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, accompanied by and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the fourth Fiscal Quarter and as of the close of such Fiscal Year, all such consolidating financial statements showing separately the financial condition of the Company and the Subsidiaries; provided, however, that any management letter prepared by said accountantsdocument required to be delivered pursuant to this Section 5.01(a) shall be deemed to have been furnished to the Administrative Agent if the Borrowers have provided the Administrative Agent with a link to such documents that have been made available through their website or that have been filed with the SEC via XXXXX;
(b) on or before the date upon which the Company’s quarterly report on Form 10-Q is required to be filed with the SEC (and in any event within 45 50 days after the end of each of the first three fiscal quarters of Holdings (in the case Fiscal Quarters 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 thereafterCompany), commencing with the fiscal quarter ended June 30, 2007 Company’s (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period), its i) unaudited consolidated and consolidating balance sheet sheets and related unaudited statements of operationsincome, partnersstockholders’ equity and cash flows flows, showing the financial condition of the Company and the Subsidiaries on a consolidated basis as of the end close of such Fiscal Quarter and for the results of their operations during such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearapplicable Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case certified by a Financial Officer of the balance sheet, Company 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 fairly presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated the 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 appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) certifying unaudited consolidating balance sheet and related unaudited consolidating statements of income as to whether a Default has occurred andof the close of such Fiscal Quarter, if a Default has occurred, specifying all such consolidating financial statements showing separately the details thereof financial condition of the Company and the Subsidiaries; provided that any action taken or proposed document required to be taken delivered pursuant to this Section 5.01(b) shall be deemed to have been furnished to the Administrative Agent if the Borrowers have provided the Administrative Agent with respect thereto, (iii) setting forth reasonably detailed calculations demonstrating compliance a link to such documents that have been made available through their website or that have been filed 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 certificateSEC via XXXXX;
(ec) commencing with the first Fiscal Month following the Effective Date as soon as available, but in any event not no more than 30 days prior to after the end of each fiscal year of each BorrowerFiscal Month, a copy of the plan and forecast (including a projected unaudited 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, sheet 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 close of such Fiscal Month and a UK Borrowing Base Certificate, related unaudited consolidated statements of income 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 cash flow 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 Company and the reason for Subsidiaries during 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 Fiscal Month and the reports delivered pursuant Fiscal Year 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 Agreementdate period;
(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.
Appears in 2 contracts
Samples: Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 Agentupon request, as applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Borrower 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 thirty (30) days after the end of each fiscal month 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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., and with respect to any fiscal month that is the end of one of the Borrower’s fiscal quarters, a Narrative Report, in each case certified by a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower 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;
(dc) concurrently with any delivery of financial statements under clause (a) or in the case of the third month in any fiscal quarter, (b) above, a compliance certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F B (a “Compliance Certificate”): (i) certifying, in the case of the financial statements delivered under clause (a) or (b), as presenting fairly in all material respects the financial condition and results of operations of each the 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 and, if applicable, demonstrating compliance with Section 6.13 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, available but in any event not more no later than the end of, and no earlier than 30 days prior to the end of of, each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 20 days of the end of each calendar month, and at such other times as the same may be requested by provided to the Administrative Revolving Loan 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 and, at all times after the Ex-Im Effective Date, an Ex-Im Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect to the US such Borrowing Base, Canadian Borrowing Base, UAE Base or Ex-Im Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base as any Agent may reasonably requestapplicable, provided to the Revolving Loan Agent;
(g) as soon as available but in any event within 30 20 days of the end of each calendar month and at such other times as the same may be requested by provided to the Administrative Revolving Loan Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible SubsidiaryBorrower’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiarythe Borrower’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared Inventory counts performed by the Borrowers to determine Eligible Accounts Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower and Eligible Inventory, such worksheets detailing complaints and claims made against 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) aboveBorrower); and
(viii) a reconciliation of the loan balance per the Borrowers’ Borrower’s general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 20 days of the end of each calendar month (and at such other times as the same may be provided to the Revolving Loan Agent, as of the month then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(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, and at such other times as may be requested by the Administrative Agent, an updated customer list for each the Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number number, delivered electronically in a text formatted file acceptable to the Administrative Agent and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borrower;
(mj) upon request of the Administrative Agent, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service;
(k) [Reserved];
(l) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, 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;
(nm) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtorshall provide copies of such documents and notices promptly after receipt thereof; and
(on) 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 the Administrative Agent or any Agent Lender 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.
Appears in 2 contracts
Samples: Credit Agreement (A.S.V., LLC), Credit Agreement (Manitex International, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Representative will furnish to the Administrative Agent, and in the case of documents and information required Agent for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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) during any period (i) commencing on the date when Availability is less than the Applicable Trigger Amount (Level II) and (ii) ending on the date when Availability shall have been equal to or greater than the Applicable Trigger Amount (Level II) for a period of 60 consecutive days, 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 BorrowerCompany, its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate, which shall (i) certifying, in when delivered concurrently with the case delivery of the financial statements delivered under clause (b) or (c), as presenting certify that such financial statements present fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 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, (iii) setting set forth reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.13 6.12, and (iv) in the case of financial statements delivered under clause (a) only, stating state whether any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (v) set forth the full legal name of each Loan Party and its jurisdiction of organization, and describe whether, since the later of the Effective Date and the date of the last Compliance Certificate, any such Loan Party shall have (A) changed its name as it appears in official filings in the state of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) change its organization identification number, if any, issued by its state of incorporation or other organization, or (E) changed its state of incorporation or organization;
(e) as soon as available, but in any event not more Reserved;
(f) no later than 30 days prior to the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company for each month quarter (or each month, if requested by the Administrative Agent) of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 days on or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, Borrowing Base as of the period then endedmost recently ended fiscal quarter, a US fiscal month or week, as applicable, to which such 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 therewithReporting Date relates, together with supporting information and any additional reports with respect to the US Borrowing Base, Canadian Borrowing Base, UAE Borrowing Base Certificatethat the Administrative Agent may reasonably request (including, Singapore in respect of any Borrowing Base Certificate or UK Borrowing Base delivered for a month which is also the end of any fiscal quarter of the Company, a calculation of Average Quarterly Availability for such quarter then ended and an indication of what the Applicable Rate is as any Agent may reasonably requesta result of such Average Quarterly Availability);
(gh) as soon as available but in any event within 30 days of on or before each Borrowing Base Reporting Date, the end of each calendar month and at such other times as may be requested by the Administrative Agent, following information as of the period then endedmost recently ended fiscal quarter, fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text or Microsoft Excel formatted file in form reasonably acceptable to each the Administrative Agent:
(i) (A) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account DebtorDebtor and (B) a detailed aging of the Borrowers’ Credit Card Accounts (1) including aging by each credit card issuer and credit card processor and (2) reconciled to the Borrowing Base Certificate delivered as of such date, in a form reasonably acceptable to the Administrative Agent, together with a summary specifying the balance due from each credit card issuer or credit card processor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category class (raw material, work-in-process and finished goods) and by value volume on hand, which Inventory shall be valued at the lower of weighted-average cost or market market, determined utilizing the retail method as appropriate, 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 appropriateappropriate in its Permitted Discretion, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(iii) a worksheet of calculations prepared by the Borrowers to determine Eligible Credit Card Accounts, Eligible Trade Accounts and Eligible Inventory, such worksheets detailing the Credit Card Accounts, Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Credit Card Accounts, Accounts and Inventory between (A) 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) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date; and
(v) a reconciliation schedule and aging of the loan balance per the BorrowersLoan Parties’ 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 (accounts payable as of the month quarter then ended), an accounts payable forecast or aging consisting of delivered electronically in a break down of accounts by due date text formatted file in a form substantially similar to the form of accounts payable forecast provided reasonably acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(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 such time period may be extended in connection with the invoices issued writing by the Borrowers Administrative Agent in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(iiits sole discretion) 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 Subsidiarieswith respect to each Eligible Trade Account, which list shall state the customer’s name, mailing address and phone number number, delivered electronically in a text formatted file acceptable to the Administrative Agent and shall be certified as true and correct in all material respects by a Financial Officer of the applicable BorrowerBorrower Representative;
(mj) promptly upon the Administrative Agent’s request:
(i) a schedule detailing the balance of all intercompany accounts of the Loan Parties; and
(ii) such other information as the Administrative Agent may from time to time reasonably request;
(k) concurrent with any field exam permitted under Section 5.06 (or at such other times as agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide notice to the Administrative Agent of any removal or addition of any credit card issuer or credit card processor to the extent that (i) in the case of a removal, Credit Card Accounts of such credit card issuer or credit card processor were included in any previous Borrowing Base or (ii) in the case of an addition, the Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit card processor in the Borrowing Base, and concurrently with any such notice of an addition, the Company shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor, (B) a true and complete copy of each Credit Card Agreement with respect thereto, together with all material amendments, waivers and other modifications thereto, and (C) such other information with respect thereto as may be reasonably requested by the Administrative Agent; for the avoidance of doubt, unless otherwise agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card processor may be included in the Borrowing Base until a field exam with respect thereto has been completed;
(l) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said CommissionSEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be;
(nm) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan, (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (iii) the annual funding notice, as described in Section 101(f) of ERISA; provided that, with respect to the notices described in (i) or (ii), if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(n) within five (5) Business Days after a Responsible Officer of the Dubai Borrower)Borrower Representative has knowledge of the production or the receipt by a Loan Party thereof, but not more than two times in copies of any twelve (12) month period, a summary specifying the name, address and balance due for each Account Debtormaterial environmental reports produced by or on behalf of any Loan Party or Restricted Subsidiary; 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 the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding The Borrower Representative shall be deemed to have furnished to the foregoing, Administrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.01(l) upon the occurrence and during filing of such financial statements or material by the continuance Company through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the Company of an Event such financial statements on its website, so long as such system or website is publicly available; provided that, at the request of Default the Administrative Agent 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 $10,000,000Lender, 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 Representative shall promptly deliver electronic 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 paper copies of such certificatesfilings together with all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.
Appears in 2 contracts
Samples: Credit Agreement (Urban Outfitters Inc), Credit Agreement (Urban Outfitters Inc)
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year Fiscal Year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal 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 qualification, commentary or exception and without any qualification 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 the Company 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)Fiscal Quarter, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearFiscal Quarter, 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)Fiscal Year, all certified by one of the its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 D (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 the Company 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) as soon as available, available but in any event not more no later than 30 45 days prior to following the end of each fiscal year Fiscal Year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company for each month of the upcoming fiscal year Fiscal Year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(e) as soon as available but in any event within 30 days of the end of each Fiscal Month, and at such other times as may be requested by the Administrative Agent, as of the Fiscal Month then ended, a Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request;
(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 Fiscal 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 the Administrative Agent:;
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative Borrowers are deemed by the Administrative Agent to be appropriate, ; and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(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 SubsidiariesLoan Parties’ Accounts and Inventory between (A) the amounts shown in the Borrowers’ and Eligible SubsidiaryCompany’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date; and
(v) a reconciliation of the loan balance per the Borrowers’ Company’s 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;
(jg) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties 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 or Equipment purchased by any Loan Party;; and
(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;
(mh) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, 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
(oi) promptly following any request therefor, such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender 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.
Appears in 2 contracts
Samples: Credit Agreement (Escalade Inc), Credit Agreement (Escalade Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers U.S. Borrower will furnish to the Administrative Agent, and in the case of documents and information required Agent for prompt delivery to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe U.S. Borrower, its the U.S. Borrower’s audited consolidated balance sheet and related audited consolidated statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such year, and related notes thereto, 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 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 the U.S. Borrower and its consolidated the 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)the U.S. Borrower, 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 U.S. Borrower’s unaudited consolidated and consolidating balance sheet and related unaudited consolidated statements of operations, partnersstockholders’ 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the U.S. Borrower and its consolidated the 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.
Appears in 2 contracts
Samples: Credit Agreement (Usg Corp), Credit Agreement (Usg Corp)
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 applicableeach Lender:
(a) within 90 120 days after the end of each fiscal year Fiscal Year of Holdingsthe U.S. Borrower (or, if earlier, the date provided to the holders of the U.S. Borrower’s equity or debt securities generally), its audited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal 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 the U.S. Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied . The U.S. Borrower shall be deemed to have delivered the financial statements required to be delivered pursuant to this Section 5.01(a) upon the filing of such financial statements by the U.S. Borrower through the SEC’s XXXXX system (or any management letter prepared successor electronic gathering system) or the publication by said accountantsthe U.S. Borrower of such financial statements on its website;
(b) (i) within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of Holdings (in the case each Fiscal Year of the fiscal year ending December 31U.S. Borrower, 2007its consolidated and consolidating balance sheet (including a summary of stockholders’ equity as customarily shown on a balance sheet) and each fiscal quarter for related statements of operations and cash flows, and, (ii) if Availability during any Fiscal Month is at any time less than the fiscal year ending December 31Minimum Excess Availability Amount, 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 within 30 days after the end of such quarterly period)Fiscal Month, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows in each case, as of the end of and for such fiscal quarter Fiscal Quarter or Fiscal Month, as the case may be, and the then elapsed portion of the fiscal yearsuch 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)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 the U.S. Borrower 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 footnotesfootnotes (it being acknowledged and agreed that such quarterly and monthly financial statements will not be subsequently audited on a quarterly or monthly basis). The U.S. Borrower shall be deemed to have delivered the financial statements required to be delivered pursuant to this Section 5.01(b) upon the filing of such financial statements by the U.S. Borrower through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the U.S. Borrower of such financial statements on its website;
(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 D (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 the U.S. 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 footnotesfootnotes (it being acknowledged and agreed that such quarterly and monthly financial statements will not be subsequently audited on a quarterly or monthly basis), (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 6.14 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) as soon as available, available but in any event not more no later than 30 75 days prior to following the end commencement of each fiscal year Fiscal Year of each the U.S. Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the U.S. Borrower for each month of the upcoming fiscal year Fiscal Year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fe) as soon as available but in any event within 30 20 days of the end of each calendar monthFiscal Quarter, and at such other times as may be necessary to redetermine availability of Loans and Letters of Credit to either Borrower hereunder or 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 which calculates the U.S. Borrowing Base Certificateand the Canadian Borrowing Base, 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 either such Borrowing Base as any the Administrative Agent may reasonably request;
; provided that, the Borrowing Base Certificates will also be (gi) 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, prepared as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to last day of each Agent:
(i) a detailed aging Fiscal Month of the Borrowers’ and Eligible Subsidiary’s Accounts U.S. Borrower (Ax) 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 commencing when the aggregate US Availability Dollar Amount of outstanding Loans exceeds $350,000,000 at any time and Canadian Availability is less than $25,000,000 or UK Availability is less than $10,000,000, ending at such time as 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.aggregate Dollar Amount of
Appears in 2 contracts
Samples: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsaccountants provided, that the requirements of this clause (a) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a consolidated annual report for the Company and its Subsidiaries containing the foregoing information on form 10-K in the time period specified above in this clause (a);
(b) within 45 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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, provided, that the requirements of this clause (b) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a quarterly report for the Company and its Subsidiaries containing the foregoing information on form 10-Q in the time period specified above in this clause (b);
(c) within 30 thirty (30) days after the end of each fiscal month of the Company (other than for a month which is also the third, sixth and ninth month end of any a fiscal year) (i) quarter or fiscal year of the US BorrowerCompany), its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures income statement 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., all (with the exception of the first two full fiscal months ending immediately after consummation of the Specified Acquisition) certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to quarterly adjustments and entries (consistent with past practices), normal year-end audit adjustments, and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (a “Compliance Certificate”) (i) certifying, in the case of the financial statements delivered under clause (b) or (c) (other than, solely in the case of clause (c) above, for the first two full fiscal months ending immediately after consummation of the Specified Acquisition), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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) in the case of the financial statements delivered under clauses (a) or (b) above, setting forth reasonably detailed calculations demonstrating compliance with Section Sections 6.13 for such period (whether or not a Covenant Testing Trigger Period then exists), 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 referred to in Section 3.04 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.
Appears in 2 contracts
Samples: Credit Agreement (Farmer Brothers Co), Credit Agreement (Farmer Brothers Co)
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, and in the case of documents and Agent (which will promptly furnish such 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:Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operationsearnings, partnersshareholders’ 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 PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and acceptable (whose opinion shall not be qualified as to the Required Lenders (without a “going concern” scope of audit or like qualification or exception and without any qualification or exception as to the scope status of such auditthe Company and its consolidated Subsidiaries as a going concern) to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(b) within 45 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operationsearnings, partnersshareholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 thirty (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 Borrowerfirst two fiscal months of each fiscal quarter of the Company, its consolidated balance sheet and related consolidated statements of operations earnings and a schedule of distributions and Capital Expenditures cash flows 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 of) the corresponding 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (i) certifying, in the case certifying that no Event 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 or Default has occurred and, if a an Event of Default or Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) forth, in the case of the financial statements delivered under clause (a) onlyor (b), stating whether any change in GAAP or in the application thereof has occurred since the date reasonably detailed calculations 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;
Fixed Charge Coverage Ratio (ewhether or not a Trigger Event then exists) 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 endedto which such financial statements relate, 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 (iii) describing in reasonable detail such information in connection therewith, together with any additional reports with respect to Permitted Acquisitions consummated during the US Borrowing Base, Canadian Borrowing Base, UAE Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base preceding fiscal quarter as any the 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 Agentrequire, 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 extent such date prepared in a manner reasonably acceptable information has not previously been supplied 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 Inventoryhereunder, 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 certifying as to the calculations and basis, in reasonable detail, of any cost savings added back to EBITDA pursuant to the provisions of clause (a)(xii) 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 endeddefinition thereof), 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.
Appears in 2 contracts
Samples: Credit Agreement (ATD Corp), Credit Agreement (American Tire Distributors Holdings, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, and in the case of documents and information required Agent for prompt delivery to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, its the Borrower’s audited consolidated balance sheet and related audited consolidated statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such year, and related notes thereto, 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 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 the Borrower and its consolidated the 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)the Borrower, 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 Borrower’s unaudited consolidated and consolidating balance sheet and related unaudited consolidated statements of operations, partnersstockholders’ 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated the 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.
Appears in 2 contracts
Samples: Credit Agreement (Usg Corp), Credit Agreement (Usg Corp)
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 applicableLender:
(a) within 90 120 days after the end of each fiscal year of Holdingsthe Company, if not filed electronically with the SEC and publicly available for retrieval by the Lender after notice from the Company as described below, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Lender (without a “going concern” or like qualification qualification, commentary or exception 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;; provided that notice by the Company to Lender that the Company has filed with the SEC its Form 10-K annual report of the Company for such annual period within such time period shall be deemed to satisfy the requirements of this subsection (a), so long as such financial statements and reports shall be readily available to Lender.
(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 31Company, 2007) and each fiscal quarter for the fiscal year ending December 31, 2008 and each fiscal year of Holdings thereafter), commencing if not filed electronically with the fiscal quarter ended June 30, 2007 (SEC and publicly available for retrieval by the Lender after notice from the Company as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period)described below, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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;; provided that notice by the Company to Lender that the Company has filed with the SEC its Form 10-Q quarterly report of the Company for such quarterly period within such time period shall be deemed to satisfy the requirements of this subsection (b), so long as such financial statements and reports shall be readily available to Lender.
(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) aboveabove (collectively or individually, as the context requires, the “Financial Statements”), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements Financial Statements delivered under clause (a) or (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 Sections 6.12, 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements Financial Statements accompanying such certificate;
(d) [reserved];
(e) as soon as available, but in any event not more no later than 30 60 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Lender;
(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 necessary to re-determine Availability hereunder or as may be reasonably requested by the Administrative AgentLender, 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 the Lender 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 reasonably requested by the Administrative AgentLender, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agentthe Lender:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Lender, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative AgentLender, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent Lender has previously indicated to the Borrower Representative are deemed by the Administrative Agent Lender to be appropriate, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to material complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(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 detailed jobs-in-progress report in form and substance reasonably satisfactory to the Lender, including for each contract (1) contract name or number, (2) total value of the contract, (3) amount billed to date, (4) total costs incurred to date, (5) total expected cost, (6) total expected gross profits, and (7) revenue earned to date and total expected revenues;
(h) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between (A) 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
, (vB) a reconciliation of the loan balance per amounts and dates shown in the Borrowers’ general ledger reports delivered pursuant to clauses (i) and (ii) above and the loan balance under this Agreement;
Borrowing Base Certificate delivered pursuant to clause (hg) as soon as available but in any event within 30 days of the end of each calendar month (above 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 Datesuch 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be;
; provided that prompt notice by the Company to Lender that the Company has filed any such reports, proxy statements or other materials with the SEC or any succeeding Governmental Authority shall be deemed to satisfy the requirements of this subsection (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 Borroweri), but not more than two times in any twelve (12) month periodso long as such reports, a summary specifying the name, address and balance due for each Account Debtorproxy statements or other materials shall be readily available to Lender; and
(oj) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any SubsidiaryParty, or compliance with the terms of this Agreement, as any Agent the Lender 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.
Appears in 2 contracts
Samples: Credit Agreement (Hickok Inc), Credit Agreement (Hickok Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableLender:
(a) within 90 120 days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and form 10-K for such year, setting forth in each case in comparative form fiscal year filed with the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing Securities 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 accountantsExchange Commission;
(b) within 45 days after the end of each of the first three fiscal quarters of Holdings (in the case of Borrower, 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 form 10-Q for such fiscal quarter filed with the Securities 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 footnotesExchange Commission;
(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 operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers, as presenting fairly in all material respects the financial condition and results of operations of the Borrower 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;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 during the respective period and, if a Default has occurredoccurred during the respective period, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (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 referred to in Section 3.04 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 25 days of the end of each calendar month, and at such other times as may be requested by the Administrative Agentnecessary to re-determine availability of Advances hereunder, 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 the Lender may reasonably request;
(gf) as soon as available but in any event within 30 20 days of the end of each calendar month and at such other times as may be requested by the Administrative AgentLender, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agentthe Lender:
(i) a detailed aging of the Borrowers’ and Eligible SubsidiaryBorrower’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and the terms offered), (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Lender, together with a summary specifying the name name, address, and balance due for each Account Debtor, and (3) separately identifying all accounts arising from the sale of goods or services provided by the Morrisville, Pennsylvania and/or the Middleton, Ohio plants operated by certain of the Loan Parties;
(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 Borrower to determine Eligible Accounts and Eligible InventoryAccounts, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusion;
(iviii) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Borrower’s Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible SubsidiaryBorrower’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(viv) a reconciliation of the loan balance per the Borrowers’ Borrower’s 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.
(kg) 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 jurisdictionService;
(lh) within 30 days of each March 31 and September 30if requested by Lender, 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 the Borrower 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 the Borrower 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
(oi) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as any Agent the Lender may reasonably request. Notwithstanding .
(j) provided, however, that so long as no Revolving Loans have been outstanding during a particular month, then Borrower need not produce 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 items otherwise required by Sections 5.01(fSection 5.01 (c), (g), and e) or (hf) (unless specifically requested by Lender in connection 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 certificatesa proposed Borrowing.
Appears in 2 contracts
Samples: Credit Agreement (Material Sciences Corp), Credit Agreement (Material Sciences Corp)
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 applicableeach Lender:
(a) within 90 one hundred twenty (120) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated and, if applicable, consolidating (or as otherwise agreed by Administrative Agent in its Permitted Discretion) balance sheet and related statements of operations, partners’ stockholders' 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 Administrative Agent (without a “going concern” or like qualification qualification, commentary or exception 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) at all times on or after a Qualifying IPO, within 45 forty-five (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)Company, its consolidated and and, if applicable, consolidating (or as otherwise agreed by Administrative Agent in its Permitted Discretion) balance sheet and related statements of operations, partners’ stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 thirty (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 BorrowerCompany, its consolidated and, if applicable, consolidating (or as otherwise agreed by Administrative Agent in its Permitted Discretion) balance sheet and related consolidated statements of operations operations, stockholders' equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 of the Fixed Charge Coverage Ratio (whether or not a Covenant Testing Trigger Period exists) and, if a Covenant Testing Trigger Period exists, demonstrating whether the Loan Parties are in 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, available but in any event not more no later than 60 days after the end of, and no earlier than 30 days prior to the end of of, each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) (x) as soon as available but in any event within 30 days of the end of each calendar month (and within 3 Business Days of the end of each calendar week which ends during a Reporting Trigger Period), and (y) at such other times as may be reasonably requested by the Administrative Agent in its Permitted Discretion (provided, that Administrative Agent will not request such reporting pursuant to this clause (y) more than 2 times in any 30 consecutive day period so long as no Event of Default has occurred and is continuing), as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request;
(h) (x) as soon as available but in any event within 30 days of the end of each calendar month, and (y) at such other times as may be reasonably requested by the Administrative AgentAgent in its Permitted Discretion (provided, that Administrative Agent will not request such reporting pursuant to this clause (y) more than 2 times in any 30 consecutive day period so long as no Event of Default has occurred and is continuing), as of the period then ended, all delivered electronically in a US Borrowing Base Certificatetext formatted file acceptable to the Administrative Agent;
(i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a Canadian Borrowing Base Certificatemanner reasonably acceptable to the Administrative Agent, together with a UAE Borrowing Certificatesummary specifying the name, address, and balance due for each Account Debtor;
(ii) a Singapore schedule detailing the Borrowers’ Inventory, in form satisfactory to the Administrative Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (average cost) or market, determined on a first-in, first-out basis, and adjusted for Reserves as the Administrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate, and (2) including a report of any variances or other results of Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and complaints and claims made against the Borrowers);
(iii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts, Eligible Credit Card Accounts Receivable and Eligible Inventory, such worksheets detailing the Accounts, Credit Card Accounts Receivable and Inventory excluded from Eligible Accounts, Eligible Credit Card Accounts Receivable and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers’ Accounts, Credit Card Accounts Receivable and Inventory between (A) the amounts shown in the Borrowers’ general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate and delivered pursuant to clause (g) above as of such date; and
(v) a UK Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect reconciliation of the loan balance per the Borrowers’ general ledger 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 requestloan balance under this Agreement;
(gi) 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 month then ended, all a schedule and aging of the Borrowers’ accounts payable, 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) [reserved];
(k) promptly upon any after the Administrative Agent’s request:reasonable request therefor, in its Permitted Discretion (provided, that, so long as no Event of Default has occurred and is continuing, Administrative Agent will not request such reporting pursuant to this clause (k) more than once during any 12-month period (or twice during any 12-month period at any time after Availability falls below the greater of (x) $15,000,000 and (y) 10% of the Aggregate Revolving Commitment):
(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 or Equipment purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(iv) copies an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of each Borrower’s and each Eligible Subsidiary’s the Borrower Representative;
(v) as of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and
(vvi) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be;
(nm) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtor; andshall provide copies of such documents and notices promptly after receipt thereof;
(on) promptly following any request therefor, (i) such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; and
(o) promptly following any request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of such Borrower or any Subsidiary, or any audit of any of them as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Notwithstanding The Company and Holdings each represents and warrants that each of it, and its respective Subsidiaries, in each case, if any (collectively with 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 $10,000,000Borrowers, the “Relevant Entities”), either (i) has no SEC registered or unregistered, publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its securities, and, accordingly, the Company hereby (A) authorizes the Administrative Agent, in its sole discretion, may require Agent to make the delivery of the reports, certificates and other documents required by Sections 5.01(ffinancial statements to be provided under Section 5.01(a), (gb) and (c) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx and (hB) (agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of any such securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Relevant Entities have no outstanding SEC registered or unregistered, publicly traded securities. Notwithstanding anything herein to the contrary, in no event shall the Company request that the Administrative Agent make available to Public-Xxxxxx budgets or any certificates, reports or calculations with respect to the US Borrowers, UK Borrower ’ compliance with the covenants contained herein or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in with respect to the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesBase.
Appears in 2 contracts
Samples: Credit Agreement (Cricut, Inc.), Credit Agreement (Cricut, Inc.)
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 ninety (90) days after the end of each fiscal year of Holdings, ICD its audited consolidated and unaudited consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such year, together with unaudited business segment reporting to the extent required by GAAP and the Securities and Exchange Commission, setting forth in each case in comparative form the figures for the previous fiscal year, all which in the case of such consolidated financial statements shall be reported on by independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” qualification, paragraph of emphasis or explanatory note or any like qualification qualification, explanation 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 ICD 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 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)ICD, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal year, together with unaudited business segment reporting to the extent required by GAAP and the Securities and Exchange Commission, 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings ICD 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 fifteen (15) Business 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 BorrowerICD, its unaudited consolidated and consolidating balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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 , all certified by one of financial statements under clause (a) or (b) above, a certificate of a its 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), Officers as presenting fairly in all material respects the financial condition and results of operations of each Borrower ICD 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;
(d) concurrently with any delivery of financial statements under clauses (a), (iib) or (c) above, a certificate of a Financial Officer of the Administrative Borrower in substantially the form of Exhibit C (each such certificate being a “Compliance Certificate”) (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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 6.11, and (iviii) 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 referred to in Section 3.04 which affects the financial statements accompanying such certificate 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.
Appears in 2 contracts
Samples: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
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 applicableLender:
(a) within 90 days after the end of each fiscal year of HoldingsCompressco Partners, its audited consolidated (and unaudited consolidating) 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 Compressco Partners’ independent public accountants of recognized national standing and reasonably acceptable to the Required Lenders Lender (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 Compressco Partners 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)Compressco Partners, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 Compressco Partners 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) to the extent Availability (calculated without giving effect to the Availability Block) is less than $5,000,000 as of the last day of any fiscal month, within 30 20 days after the end of each such fiscal month (other than for the third, sixth and ninth month of any fiscal year) (i) of the US BorrowerCompressco Partners, its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of the Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Compressco Partners and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal quarter-end adjustments and normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (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 Compressco Partners 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) in the case of the financials referred to in clause (a) or (b) above, setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 6.12 (if applicable) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more no later than 30 the end of, and no earlier than 60 days prior to the end of of, each fiscal year of each BorrowerCompressco Partners, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Borrowers for each month of the upcoming such fiscal year (the “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 requestLender;
(g) as soon as available but in any event (i) so long as Exposure equals $0 at all times during such calendar quarter, within 30 days of after the end of each calendar month quarter, a Borrowing Base Certificate and at such other times as may be requested by the Administrative Agent, supporting information in connection therewith as of the period then endedend of such calendar quarter, (ii) so long as Exposure is greater than $0 at any time during any calendar month and Availability (calculated without giving effect to the Availability Block) is greater than $5,000,000 at all times during such calendar month, within 20 days after the end of each calendar month, a Borrowing Base Certificate and supporting information in connection therewith as of the end of such calendar month and (iii) so long as Exposure is greater than $0 at any time during any calendar week and Availability (calculated without giving effect to the Availability Block) is less than or equal to $5,000,000 at any time during such calendar week, within three Business Days after the end of each calendar week, a Borrowing Base Certificate (limited to a roll-forward of Accounts) as of the end of such calendar week, in each case, together with any additional reports with respect to the Borrowing Base as the Lender may reasonably request;
(h) as soon as available but in any event (i) so long as Exposure equals $0 at all times during such calendar quarter, within 30 days after the end of each calendar quarter and (ii) so long as Exposure is greater than $0 at any time during any calendar month, within 20 days after the end of each calendar month, delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to the Lender, a worksheet of calculations prepared by the Loan Parties to determine Eligible Accounts, Eligible Inventory, Eligible Service and Rental Compressor Fleet Equipment and Eligible New Service and Rental Compressor Fleet Equipment, such worksheets describing (including by category) the Accounts, Inventory and Service and Rental Compressor Fleet Equipment excluded from Eligible Accounts, Eligible Inventory, Eligible Service and Rental Compressor Fleet Equipment and Eligible New Service and Rental Compressor Fleet Equipment, respectively, and the reason for such exclusion, which, with respect to such calculations delivered pursuant to clause (i) above, shall be as of the end of such calendar quarter and, with respect to such calculations delivered pursuant to clause (ii) above, shall be as of the end of such calendar month;
(i) as soon as available but in any event within 30 days after the end of each Agentcalendar quarter, as of the end of such quarter, delivered electronically in a text formatted file reasonably acceptable to the Lender and certified as true and correct, in all material respects, by a Financial Officer of the Borrowers:
(iA) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Lender, together with a summary specifying the name and balance due for each Account Debtor;
(iiB) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative AgentLender, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weighted-cost (determined on an average cost basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent Lender has previously indicated to the Borrower Representative are deemed by the Administrative Agent Lender to be appropriate, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and complaints and claims made against the Borrowers);
(C) reconciled a schedule detailing the Loan Parties’ Service and Rental Compressor Fleet Equipment located in the United States or Canada, in form reasonably satisfactory to the applicable Borrowing Base Certificate delivered as Lender, by location (showing Equipment in transit and any Equipment located with a third party) and by type (including whether such Equipment constitutes New Service and Rental Compressor Fleet Equipment) which Equipment shall be valued at net book value (calculated based on a depreciation schedule not to exceed 12 years from the date of original purchase by the relevant Loan Party) or, with respect to New Service and Rental Compressor Fleet Equipment, at cost or, if no appraisal of such dateEquipment has been delivered to the Lender during the immediately preceding 12 month period, net book value, and adjusted for Reserves as the Lender has previously indicated to the Borrower Representative are deemed by the Lender to be appropriate;
(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;
(ivD) a reconciliation of the BorrowersLoan Parties’ Accounts, Inventory, Service and Eligible Subsidiaries’ Accounts Rental Compressor Fleet Equipment located in the United States and Inventory Canada, and New Service and Rental Compressor Fleet Equipment located in the United States and Canada between (1) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (iA), (B) and (iiC) above; and, and (2) the amounts and dates shown in the reports delivered pursuant to clauses (A), (B) and (C) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(vE) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;
(hF) a schedule and aging of the Borrowers’ accounts payable;
(j) as soon as available but in any event within 30 days of the end of each calendar month (quarter, as of the month quarter then ended), and as may be requested by the Lender at any time a Default exists, an accounts payable forecast or aging consisting of a break down of accounts by due date updated customer list for the Borrowers and their Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a form substantially similar text formatted file acceptable to the form Lender and certified as true and correct, in all material respects, by a Financial Officer of accounts payable forecast provided to the Administrative Agent on or prior to the Closing DateBorrowers;
(i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(jk) promptly upon the Lender’s request at any Administrative Agent’s requesttime a Default exists:
(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 or Equipment purchased by any Loan Party;; and
(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.
(kl) as soon as possible reasonably practicable and in any event within 30 10 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 BorrowerService;
(m) within 15 days of the first Business Day of each March and September, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization
(n) reasonably promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, 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 Compressco Partners to the holders of its Subsidiaries to its public shareholders Equity Interests generally, as the case may be;
(no) promptly upon within 90 days after the request end of the Administrative Agent each fiscal year of Compressco Partners (or more frequently if desired by the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower and the Dubai BorrowerBorrowers), but supplements in writing to the Schedules hereto related to Article III hereof to the extent necessary to ensure such representations and warranties are true and correct (without giving effect to any limitation in such representations and warranties as to date); provided that delivery or receipt of such supplements shall not more than two times constitute a waiver by the Lender or a cure of any Default resulting from or in any twelve (12) month period, a summary specifying connection with the name, address and balance due for each Account Debtormatters disclosed; and
(op) reasonably promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as any Agent the Lender 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 Documents required by Sections 5.01(fto be delivered pursuant to Section 5.01(a), (g), and b) or (hn) (with respect to the US Borrowersextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, UK Borrower shall be deemed to have been delivered on the date (1) on which Compressco Partners posts such documents, or Canadian Borrowerprovides a link thereto on Compressco Partners’ website on the Internet; or (2) more frequently than monthlyon which such documents are posted on Compressco Partners’ behalf on an Internet or intranet website, including weekly or dailyif any, in to which event, in the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesLender has access.
Appears in 2 contracts
Samples: Credit Agreement (Compressco Partners, L.P.), Credit Agreement (Compressco Partners, L.P.)
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ equity and cash flows (all with segment information for Canadian operations consistent with the 10-K filed by Holdings with the SEC for that fiscal year) 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 appliedGAAP, accompanied followed 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)Holdings, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity operations and cash flows (all with segment information for Canadian operations, consistent with the 10-Q filed by Holdings with the SEC for that fiscal quarter) 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 its 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 appliedGAAP, 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 BorrowerHoldings, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers 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 (on a FIFO basis), subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Administrative Borrower Representative in substantially the form of Exhibit F D (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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 (if such compliance has been triggered pursuant to the terms of this Agreement) and (iviii) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) within 45 days of the filing thereof, copies of the Canadian Borrower’s federal and provincial (if applicable) Canadian income Tax returns for the Fiscal Year to which such financial statements in clause (a) apply;
(f) as soon as available, but in any event not more than 30 days prior to following the end of each fiscal year of each Borrowerthe Borrowers, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower Holdings and its Subsidiaries on a consolidated basis for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar month, and at such other times as may be necessary to re-determine availability of Advances hereunder or 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 the Administrative Agent may reasonably request; and the PP&E Component of the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent’s asset valuation experts, (ii) concurrent with the sale or commitment to sell any material assets constituting part of the PP&E Component, (iii) in the event such assets constituting a material part of the PP&E Component are idled for any reason other than routine maintenance or repairs for a period in excess of ten (10) consecutive days, or (iv) in the event that the value of such assets is otherwise impaired, as determined in the Administrative Agent’s Permitted Discretion; provided that (A) at the option of the Borrowers at any time or (B) at the request of the Administrative Agent in the event that either (x) an Event of Default has occurred and is continuing or (y) Availability is less than $35,000,000 (subject to Availability increases to more than $40,000,000 as set forth in Section 6.13), the reports required pursuant to this clause will be delivered by Wednesday of each calendar week (for the calendar week most recently ended) or more frequently;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month and at such other times as may be reasonably requested by the Administrative AgentAgent in its Permitted Discretion, as of the period then ended, all to the extent practicable delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agentfile:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by due date (with a report notation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category class and by value on handproduct type, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative Borrowers are deemed by the Administrative Agent to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and complaints and claims made against the Borrowers), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Administrative Borrower to determine Eligible Accounts Accounts, Eligible Inventory and Eligible InventoryEquipment, such worksheets detailing the Accounts Accounts, Inventory and Inventory Equipment excluded from Eligible Accounts Accounts, Eligible Inventory and Eligible Inventory Equipment and the reason for such exclusion;; and
(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
provided that (vA) a reconciliation at the option of the loan balance per Borrowers at any time or (B) at the Borrowers’ general ledger request of the Administrative Agent in the event that either (x) an Event of Default has occurred and is continuing or (y) Availability is less than $35,000,000 (subject to Availability increases to more than $40,000,000 as set forth in Section 6.13), the reports required pursuant to this clause will be delivered by Wednesday of each calendar week (for the calendar week most recently ended) or more frequently, provided that, with respect to the loan balance reports required in clauses (i) and (ii) above, weekly reporting shall include only summary schedules (and shall not include the report of variances required in clause (ii)(2) above) unless the detailed schedules are specifically requested by the Administrative Agent, with the detailed schedules continuing on a monthly basis, and the reconciliation required under this Agreementclause (iv) above shall been delivered at all times on a monthly basis;
(hi) 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 20 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended, a schedule and aging of the Borrowers’ accounts payable, to the extent practicable delivered electronically in a text formatted file;
(j) promptly upon any the Administrative Agent’s reasonable request:
(i) copies of invoices in connection with the invoices issued by the Borrowers any Borrower 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 or Equipment purchased by any Loan Party;
(iii) a schedule detailing the Borrowers’ Equipment comprising the PP&E Component, in form satisfactory to the Administrative Agent, by location and type; and
(iv) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivk) promptly upon the Administrative Agent’s reasonable request, as of the period then ended, copies of each Borrower’s and each Eligible Subsidiary’s the Borrowers’ sales journaljournals, cash receipts journal journals (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; andjournals;
(vl) a detailed listing of all advances of proceeds of Loans requested by promptly upon 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 thereofAdministrative Agent’s reasonable request, copies of all tax certain income 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 Canada Revenue Agency, to be provided 45 days of each March 31 and September 30after filing, 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 Borrowerif requested;
(m) promptly upon the Administrative Agent’s request, a certificate of good standing or certificate of status, as applicable, for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(n) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Borrower or any Subsidiary with the Securities and Exchange Commission, Securities Commission of any Province of Canada or any Governmental Authority succeeding to any or all of the functions of said CommissionCommission(s), or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be;
(no) promptly upon concurrently with the request delivery of monthly Borrowing Base Certificates pursuant to this Section 5.01 (and once monthly in the event that Borrowing Base Certificates are delivered more frequently than monthly hereunder), a copy of the Administrative Agent (or prior month’s account statement provided by the Singapore Administrative Agent or depository bank to the UAE Administrative agent with respect to Account Debtors Borrowers for any bank account that contains amounts in trust for the payment 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 DebtorCanadian tobacco tax liabilities; and
(op) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as any the Administrative 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.
Appears in 2 contracts
Samples: Credit Agreement (Core-Mark Holding Company, Inc.), Credit Agreement (Core-Mark Holding Company, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableLender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated and consolidating balance sheet and related income statement, and its consolidated (but not consolidating) statements of operations, partnersstockholders’ 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 nationally recognized 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 the Borrower 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 50 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)Borrower, its consolidated and consolidating balance sheet and related income statement and its consolidated (but not consolidating) statements of operations, partnersstockholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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[Intentionally omitted.]
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F A (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 the Financial Covenants contained herein 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) [Intentionally omitted.]
(f) as soon as available, but in any event not more than 30 days prior to the end of each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, sheet and income statement and funds flow statementconsolidated (but not consolidating) statement of cash flows) of each the Borrower for each month quarter of the upcoming coming fiscal year (the “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 requestLender;
(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;[Intentionally omitted.]
(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 the Borrower 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 the Borrower 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
(oi) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any SubsidiaryParty, or compliance with the terms of this Agreement, as any Agent the Lender 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.
Appears in 2 contracts
Samples: Credit Agreement (Fuel Tech, Inc.), Credit Agreement (Fuel Tech, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 Agentupon request, as applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) [Reserved]
(c) within 45 thirty (30) days after the end of each fiscal month 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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., and with respect to any fiscal month that is the end of one of the Borrower’s fiscal quarters, a Narrative Report, in each case certified by a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower 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;
(d) concurrently with any delivery of financial statements under clause (a) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C: (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 and, if applicable, demonstrating compliance with Section 6.13 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, available but in any event not more no later than the end of, and no earlier than 30 days prior to the end of of, each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 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 Certificateand at all times after the Ex-Im Effective Date, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK an Ex-Im Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing BaseBase as the Administrative Agent may reasonably request; provided that during an Enhanced Reporting Period, Canadian Borrowing Basein addition to the foregoing, UAE on the second Business Day of each week, Borrower shall deliver a Borrowing Base Certificate, Singapore and at all times after the Ex-Im Effective Date, an Ex-Im Borrowing Base Certificate or UK Certificate, with respect to the prior week, which Borrowing Base Certificate, and at all times after the Ex-Im Effective Date, an Ex-Im Borrowing Base Certificate, shall calculate Inventory as any Agent may reasonably requestof the prior calendar month-end and a roll-forward of Accounts as of the last Business Day of the prior week;
(gh) as soon as available but in any event within 30 20 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 the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible SubsidiaryBorrower’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiarythe Borrower’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrower);
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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’ Borrower’s Accounts and Inventory between (A) the amounts shown in the Borrowers’ and Eligible SubsidiaryBorrower’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date; and
(v) a reconciliation of the loan balance per the Borrowers’ Borrower’s general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 30 20 days of the end of each calendar month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(ij) within 30 days of each March 31 and September 30, and at such other times as may be requested by the end of each calendar monthAdministrative Agent, an updated customer list for the Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a report listing all outstanding Swap Obligations text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the month then endedBorrower;
(jk) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Borrower 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivl) copies as soon as available but in any event within 20 days of the end of each calendar month (or during an Enhanced Reporting Period, on the second Business Day of each week) and at such other times as may be requested by the Administrative Agent, as of the period then ended, the 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;
(vm) a detailed listing upon request 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 thereofAdministrative Agent, 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 jurisdictionService;
(ln) 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[Reserved];
(mo) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, 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;
(np) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtorshall provide copies of such documents and notices promptly after receipt thereof; and
(oq) 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 the Administrative Agent or any Agent Lender 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.
Appears in 2 contracts
Samples: Credit Agreement (A.S.V., LLC), Credit Agreement (Manitex International, Inc.)
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 applicableeach Lender:
(a) within 90 in accordance with then applicable law and not later than ninety (90) days after the end of each fiscal year of Holdingsthe Company, its the Company’s audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Xxxxx & YoungGrant Xxxxxxxx LLP or other 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 auditaudit except, in each case, if such qualification, exception or explanatory paragraph is related solely to an upcoming maturity date of any Indebtedness incurred under this Agreement or the Term Loan Agreement) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by ; provided that the Borrowers shall be deemed to have furnished said accountantsannual audited financial statements for purposes of this Section 5.01(a) if the same shall have timely been made available on “XXXXX” and the Borrowers shall have complied with Section 5.01(l) in respect thereof;
(b) within 45 in accordance with then applicable law and not later than forty-five (45) days after the end of each fiscal quarter 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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; provided that the Borrowers shall be deemed to have furnished said quarterly financial statements for purposes of this Section 5.01(b) if the same shall have timely been made available on “XXXXX” and the Borrowers shall have complied with Section 5.01(l) in respect thereof;
(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, (i) a schedule or report, in form and substance reasonably satisfactory to the Administrative Agent, detailing the financial condition and results of operations of the Company and its Restricted Subsidiaries after eliminating the assets, liabilities and results of operations of Compressco and (ii) a compliance certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (iA) certifying, in the case of the financial statements delivered under clause (b), as presenting that such statements present fairly in all material respects the financial condition and results of operations of each Borrower the Company 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, (iiB) 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, (iiiC) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 of the Fixed Charge Coverage Ratio for the fiscal quarter most recently ended and an indication of the Applicable RateMargin as a result of such calculation, (ivD) 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 most recently delivered pursuant to clause (a) above and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (E) setting forth a reasonably detailed calculation showing compliance with clause (iii) to the proviso to Section 6.04(c), and (F) certifying that the schedule or report delivered pursuant to clause (i) above is true and correct in all material respects;
(ed) as soon as available, but in any event not more than 30 within ninety (90) days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of (commencing with 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 ending December 31, 2018), its internally-prepared consolidating financial statements reconciling the financial condition of the end of each calendar monthits Restricted Subsidiaries and Unrestricted Subsidiaries, 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 format 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 Company as presenting fairly in all material respects the same become publicly available, copies financial condition and results 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 operations of the functions of said Commission, or with any national securities exchange, or distributed by any Loan Party or its Restricted Subsidiaries to its public shareholders generally, as the case may be;
(n) promptly upon the request and Unrestricted Subsidiaries of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent Company in accordance 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.GAAP;
Appears in 2 contracts
Samples: Credit Agreement (Tetra Technologies Inc), Credit Agreement (Tetra Technologies Inc)
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year Fiscal Year of Holdingsthe Company, its audited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal 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 qualification, commentary or exception and without any qualification 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 the Company 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)Fiscal Quarter, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearFiscal Quarter, 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)Fiscal Year, all certified by one of the its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 D (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 the Company 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 referred to in Section 3.04 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.
Appears in 2 contracts
Samples: Credit Agreement (Escalade Inc), Credit Agreement (Escalade Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, and in the case of documents and Agent (which will promptly furnish such 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:Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operationsearnings, partnersshareholders’ 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 PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and acceptable (whose opinion shall not be qualified as to the Required Lenders (without a “going concern” scope of audit or like qualification or exception and without any qualification or exception as to the scope status of such auditthe Company and its consolidated Subsidiaries as a going concern) to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(b) within 45 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operationsearnings, partnersshareholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 thirty (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 Borrowerfirst two fiscal months of each fiscal quarter of the Company, its consolidated balance sheet and related consolidated statements of operations earnings and a schedule of distributions and Capital Expenditures cash flows 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 of) the corresponding 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (i) certifying, in the case certifying that no Event 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 or Default has occurred and, if a an Event of Default or Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) forth, in the case of the financial statements delivered under clause (a) onlyor (b), stating whether any change in GAAP or in the application thereof has occurred since the date reasonably detailed calculations 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;
Fixed Charge Coverage Ratio (ewhether or not a Trigger Event then exists) 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 endedto which such financial statements relate, 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 (iii) describing in reasonable detail such information in connection therewith, together with any additional reports with respect to Permitted Acquisitions consummated during the US Borrowing Base, Canadian Borrowing Base, UAE Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base preceding fiscal quarter as any the 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 Agentrequire, 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 extent such date prepared in a manner reasonably acceptable information has not previously been supplied 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 Inventoryhereunder, 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 certifying as to the calculations and basis, in reasonable detail, of any cost savings added back to EBITDA pursuant to the provisions of clause (a)(xii) 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 definition 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 (hv) (with respect to the US Borrowers, UK Borrower or Canadian Borrower) more frequently than monthly, including weekly or daily, in which eventcertifying, in the case of Borrowing Base Certificatesthe financial statements delivered under clause (a), a list of names of all Immaterial Subsidiaries (if any) and Unrestricted Subsidiaries (if any), that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary or Unrestricted Subsidiary, as applicable, and that all Domestic Subsidiaries and Canadian Subsidiaries listed as Immaterial Subsidiaries in the applicable Borrowing Base would be adjusted immediately upon receipt aggregate comprise less than 10% of Total Assets of the Company and the Subsidiaries at the end of the period to which such certificates.financial statements relate and represented (on a contribution basis) less than 10% of EBITDA for the period to which such financial statements relate;
Appears in 2 contracts
Samples: Credit Agreement (ATD Corp), Credit Agreement (ATD Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, the Co-Collateral Agents 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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Ernst & Young LLP or other 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 the Borrower 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 forty-five (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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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 thirty (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, excluding the months of January, March, June, September and December, its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 of the Fixed Charge Coverage Ratio for the most recently ended four (4) fiscal quarters and, if applicable, demonstrating compliance with Section 6.13 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more later than 30 days prior to the end first Business Day of each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month, month (or within five (5) days of the end of each calendar week if and at such other times for so long as may be requested by the Administrative AgentAvailability is less than $20,000,000), 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;
(gh) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month (or within five (5) days of the end of each calendar week if and at such other times for so long as may be requested by the Administrative Agent, Availability is less than $20,000,000) as of the period then ended, all delivered electronically if such information then exists in a text or Microsoft Excel formatted file acceptable to each Agentelectronic format on the Borrower’s electronic information database:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiaryeach Loan Party’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent and the Co-Collateral Agents, together with a summary specifying the balance due for each Account Debtor, and to the extent not included in the customer list provided under Section 4.01(j), the name and balance due address for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible SubsidiaryLoan Party’s Inventory, in form satisfactory to the Administrative Agent, Inventory (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value quantity on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has Co-Collateral Agents have previously indicated to the Borrower Representative are deemed by the Administrative Agent Co-Collateral Agents to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by such Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by such Loan Party and complaints and claims made against such Loan Party), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by schedule detailing each Loan Party’s Trademarks, indicating, to the Borrowers extent not previously reported, new trademark applications and registrations, in form reasonably satisfactory to determine Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory Administrative Agent and the reason for such exclusionCo-Collateral Agents, including any applicable registration number or application number with the United States Patent and Trademark Office;
(iv) a reconciliation of the Borrowers’ each Loan Party’s Accounts, Inventory and Eligible Subsidiaries’ Accounts and Inventory Trademarks between the amounts shown in the Borrowers’ and Eligible Subsidiarysuch Loan Party’s general ledger and financial statements and the reports delivered pursuant to clauses (i), (ii) and (iiiii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ each Loan Party’s general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 30 days of the end of each calendar month twenty (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;
(i20) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended, a schedule and aging of each Loan Party’s accounts payable, delivered electronically;
(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 available but in any event within 30 forty-five (45) days of filing thereofthe end of each fiscal year of the Borrower, copies as of the end of the most recently ended fiscal year of the Borrower, a list of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service or the relevant tax authority of any foreign jurisdictioncustomer addresses, delivered electronically;
(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;
(mk) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Borrower 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 the Borrower 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
(ol) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent, the Co-Collateral Agents or any Agent Lender may reasonably request. Notwithstanding Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the foregoing, upon date on which such documents are filed for public availability on the occurrence Securities and during Exchange Commission’s Electronic Data Gathering and Retrieval System; provided that the continuance of an Event of Default Borrower shall notify (which may be by facsimile 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, electronic mail) the Administrative Agent, in its sole discretion, may require the delivery Agent of the reports, certificates filing of any such documents and other documents required by Sections 5.01(f), (g), and (h) (with respect provide to the US BorrowersAdministrative Agent by electronic mail electronic versions (i.e., UK Borrower or Canadian Borrowersoft copies) 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 certificatesdocuments.
Appears in 1 contract
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 HoldingsCompressco Partners, its audited consolidated (and unaudited consolidating) 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 Compressco Partners’ independent public accountants of recognized national standing and reasonably acceptable to the Required Lenders Administrative Agent (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 Compressco Partners 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 forty-five (45) days after the end of each of the first three fiscal quarters of Holdings and within twenty (in the case of the fiscal year ending December 31, 200720) 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)each fiscal month of each fiscal year of Compressco Partners, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter or fiscal month, as the case may be, and the then elapsed portion of the such 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 Xxxxx-cial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings Compressco Partners and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently consis-tently 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 D (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 Compressco Partners and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently consis-tently 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 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, available but in any event not more no later than 30 the end of, and no earlier than 60 days prior to the end of of, each fiscal year of each BorrowerCompressco Partners, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Borrowers for each month of the upcoming such fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event (i) within 30 20 days of after 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 therewiththerewith as of the end of such calendar month and (ii) so long as Availability is less than $10,000,000 at any time during any calendar week, within three Business Days after the end of such calendar week and each succeeding calendar week until Availability has been greater than or equal to $10,000,000 for 30 consecutive days, a Borrowing Base Certificate (limited to a roll-forward of Accounts) as of the end of such calendar week, in each case, 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 the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 20 days of after the end of each calendar month and at such other times as may be requested by the Administrative Agentmonth, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent, a worksheet of calculations prepared by the Loan Parties to determine Eligible Accounts, Eligible Inventory, Eligible Service and Rental Fleet Equipment and Eligible New Service and Rental Fleet Equipment, such worksheets describing (including by category) the Accounts, Inventory and Service and Rental Fleet Equipment excluded from Eligible Accounts, Eligible Inventory, Eligible Service and Rental Fleet Equipment and Eligible New Service and Rental Fleet Equipment, respectively, and the reason for such exclusion, which shall be as of the end of such calendar month;
(h) promptly upon the Administrative Agent’s request, as of the end of the most recently ended calendar quarter, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent and certified as true and correct, in all material respects, by a Financial Officer:
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weighted-cost (determined on an average cost basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(iii) a worksheet schedule detailing the Loan Parties’ Service and Rental Fleet Equipment located in the United States or Canada, in form reasonably satisfactory to the Administrative Agent, by location (showing Equipment in transit and any Equipment located with a third party) and by type (including whether such Equipment constitutes New Service and Rental Fleet Equipment) which Equipment shall be valued at net book value (calculated based on a depreciation schedule not to exceed 12 years from the date of calculations prepared original purchase by the Borrowers relevant Loan Party) or, with respect to determine Eligible Accounts New Service and Eligible InventoryRental Fleet Equipment, at cost or, if no appraisal of such worksheets detailing Equipment has been delivered to the Accounts Administrative Agent during the immediately preceding 12 month period, net book value, and Inventory excluded from Eligible Accounts and Eligible Inventory and adjusted for Reserves as the reason for such exclusionAdministrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate;
(iv) a reconciliation of the BorrowersLoan Parties’ Accounts, Inventory, Service and Eligible Subsidiaries’ Accounts Rental Fleet Equipment located in the United States and Inventory Canada, and New Service and Rental Fleet Equipment located in the United States and Canada between (1) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i), (ii) and (iii) above, and (2) the amounts and dates shown in the reports delivered pursuant to clauses (i), (ii) above; andand (iii) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date;
(v) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;; and
(hvi) as soon as available but in any event within 30 days a schedule and aging of the end of each calendar month (as of the month then ended), an Borrowers’ 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 Datepayable;
(i) within 30 days of promptly upon the end of each calendar monthAdministrative Agent’s request, an updated customer list for the Borrowers and their Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a report listing text formatted file acceptable to the Administrative Agent and certified as true and correct, in all outstanding Swap Obligations as of the month then endedmaterial respects, by a Financial Officer;
(j) promptly upon any the Administrative Agent’s request:request (which, in the absence of a Default, will not occur more than twice per calendar year):
(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 or Equipment purchased by any Loan Party;; and
(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 reasonably practicable and in any event within 30 10 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 jurisdictionService;
(l) within 30 15 days of the first Business Day of each March 31 and September 30September, an updated customer list a certificate of good standing for each Borrower and Loan Party from the appropriate governmental officer in its Subsidiariesjurisdiction of incorporation, which list shall state the customer’s nameformation, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borroweror organization;
(m) reasonably promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Govern-mental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or Compressco Partners to the holders of its Subsidiaries to its public shareholders Equity Interests generally, as the case may be;
(n) promptly upon within 90 days after the request end of the Administrative Agent each fiscal year of Compressco Partners (or more frequently if desired by the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower and the Dubai BorrowerBorrowers), but supplements in writing to the Schedules hereto related to Article III hereof to the extent necessary to ensure such representations and warranties are true and correct (without giving effect to any limitation in such representations and warranties as to date); provided that delivery or receipt of such supplements shall not more than two times constitute a waiver by the Lenders or a cure of any Default resulting from or in any twelve (12) month period, a summary specifying connection with the name, address and balance due for each Account Debtormatters disclosed; and
(o) reasonably promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender 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 Documents required by Sections 5.01(fto be delivered pursuant to Section 5.01(a), (g), and b) or (hm) (with respect to the US Borrowersextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, UK Borrower shall be deemed to have been delivered on the date (1) on which Compressco Partners posts such documents, or Canadian Borrowerprovides a link thereto on Compressco Partners’ website on the Internet; or (2) more frequently than monthlyon which such documents are posted on Compressco Partners’ behalf on an Internet or intranet website, including weekly or dailyif any, in to which event, in the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesAdministrative Agent and each Lender has access.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsaccountants provided, that the requirements of this clause (a) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a consolidated annual report for the Company and its Subsidiaries containing the foregoing information on form 10-K in the time period specified above in this clause (a);
(b) within 45 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the -82- then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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, provided, that the requirements of this clause (b) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a quarterly report for the Company and its Subsidiaries containing the foregoing information on form 10-Q in the time period specified above in this clause (b);
(c) within 30 thirty (30) days after the end of each fiscal month of the Company (other than for a month which is also the third, sixth and ninth month end of any a fiscal year) (i) quarter or fiscal year of the US BorrowerCompany), its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures income statement 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., all (with the exception of the first two full fiscal months ending immediately after consummation of the Specified Acquisition) certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to quarterly adjustments and entries (consistent with past practices), normal year-end audit adjustments, and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (a “Compliance Certificate”) (i) certifying, in the case of the financial statements delivered under clause (b) or (c) (other than, solely in the case of clause (c) above, for the first two full fiscal months ending immediately after consummation of the Specified Acquisition), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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) in the case of the financial statements delivered under clauses (a) or (b) above, setting forth reasonably detailed calculations demonstrating compliance with Section Sections 6.13 for such period (whether or not a Covenant Testing Trigger Period then exists), 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 referred to in Section 3.04 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.
Appears in 1 contract
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 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its the Company’s audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) [Intentionally Omitted];
(c) within 45 twenty (20) days after the end of each fiscal month 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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., all certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (bc), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 of the Fixed Charge Coverage Ratio 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 referred to in Section 3.04 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 [intentionally omitted];
(f) no later than 30 60 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of the Company, in each Borrower case, for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar monthmonth (and within 3 Business Days of the end of each calendar week which ends during a Trigger Period), and at such other times as may be requested by the Administrative AgentAgent during any Event of Default, 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 the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month (and within 3 Business Days of the end of each calendar week which ends during a Trigger Period), and at such other times as may be requested by the Administrative AgentAgent during any Event of Default, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered if requested by the Administrative Agent), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such date;Borrowers); and
(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;
(ivi) as soon as available but in any event within 20 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 formatted file acceptable to the Administrative Agent, a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between (A) the amounts shown in the Borrowers’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (ih)(i) and (iih)(ii) above; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (h)(i) and (h)(ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(vj) as soon as available but in any event within 20 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 formatted file acceptable to the Administrative Agent, a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;
(hk) 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 20 days of the end of each calendar month, a report listing all outstanding Swap Obligations and at such other times as may be requested by the Administrative Agent, as of the month then ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file acceptable to the Administrative Agent;
(jl) [intentionally omitted];
(m) promptly upon any the 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivn) copies if requested by the Administrative Agent, as of each Borrower’s and each Eligible Subsidiary’s the period then ended, the Borrowers’ 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.
(ko) as soon as possible and in any event within 30 20 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 jurisdictionService;
(lp) as soon as available but in any event within 30 20 days of the end of each March 31 and September 30calendar month, an updated customer list copies of bank statements for each Borrower Deposit Account not maintained with the Administrative Agent, and its Subsidiaries, which list shall state is located in Canada and is not an Excluded Account (as defined in 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 BorrowerSecurity Agreement);
(mq) if requested by the Administrative Agent, as of the period then ended, a detailed listing of all intercompany loans made by the Loan Parties during such prior period;
(r) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be; provided that any filings available on EXXXX shall be deemed delivered to the Administrative Agent;
(ns) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtor; andshall provide copies of such documents and notices promptly after receipt thereof;
(ot) promptly following any request therefor, (x) such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request, and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation;
(u) The Loan Parties acknowledge that the Administrative Agent may order, at the Borrower’s expense (which shall be limited to once per annum if no Event of Default has occurred and is continuing), periodic certificates of good standing or the substantive equivalent available in the jurisdictions of incorporation, formation or organization for each Loan Party from the appropriate governmental officer such jurisdiction; and
(v) The Loan Parties hereby acknowledge that (a) the Administrative Agent may, but shall not be obligated to, make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities (such personnel, the “Public Side Personnel”). The Loan Parties hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Administrative Agent, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Loan Parties 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 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent 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 Side Information.” Notwithstanding the foregoing, upon the occurrence and during Loan Parties shall be under no obligation to mxxx any Borrower Materials “PUBLIC”. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the continuance “Private Side Information” or similar designation on the content declaration screen of an Event of Default the Platform in order to enable such Public Lender 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 Agentits delegate, in its sole discretionaccordance with such Public Lender’s compliance procedures and applicable law, may require including United States Federal and state securities laws, to make reference to Borrower Materials that are not made available through the delivery “Public Side Information” portion of the reports, certificates Platform and other documents required by Sections 5.01(f), (g), and (h) (that may contain material non-public information with respect to the US Borrowers, UK Borrower Loan Parties or Canadian Borrower) more frequently than monthly, including weekly their securities for purposes of United States Federal or daily, in which event, in state securities laws; provided that such individual with access to the case of Borrowing Base Certificates, “Private Side Information” shall not share such information with the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesPublic Side Personnel.
Appears in 1 contract
Samples: Credit Agreement (Clarus Corp)
Financial Statements; Borrowing Base and Other Information. (a) The Borrowers will furnish to Agent (for delivery to each Lender):
(i) on or before the Administrative Agent, and in the case of documents and information date upon which KAC’s annual report on Form 10-K is required to be delivered by filed with the UAE Borrower SEC (and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:
(a) in any event within 90 105 days after the end of each fiscal year of HoldingsFiscal Year), its KAC’s (i) audited consolidated balance sheet and related statements of operationsincome, partnersstockholders’ equity and cash flows flows, showing the financial condition of KAC and the Subsidiaries on a consolidated basis as of the end close of such Fiscal Year and the results of their operations during such Fiscal Year, such consolidated financial statements to be audited for such year, setting forth in each case in comparative form KAC and the figures for the previous fiscal year, all reported on Subsidiaries by Deloitte & Touche LLP or other independent public accountants of recognized national standing and acceptable to the Required Lenders accompanied by an audit opinion of such accountants (without (A) a “going concern” or like qualification qualification, exception or exception explanatory paragraph and without (B) any qualification or exception as to the scope of such audit) and to be certified by a Financial Officer of KAC to the effect that such consolidated financial statements fairly present fairly in all material respects the financial condition and results of operations of Holdings KAC and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, accompanied by and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the fourth Fiscal Quarter and as of the close of such Fiscal Year, all such consolidating financial statements showing separately the financial condition of KAC, the Borrowers other than KAC (as a single group) and the Subsidiaries which are not Borrowers (as a single group); provided, however, that any management letter prepared by said accountantsdocument required to be delivered pursuant to this Section 5.1(a)(i) shall be deemed to have been furnished to Agent if the Borrowers have provided Agent with a link to such documents that have been made available through their website or that have been filed with the SEC via EXXXX;
(bii) on or before the date upon which KAC’s quarterly report on Form 10-Q is required to be filed with the SEC (and in any event within 45 50 days after the end of each of the first three fiscal quarters 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 thereafterKAC), commencing with the fiscal quarter ended June 30, 2007 KAC’s (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period), its i) unaudited consolidated and consolidating balance sheet sheets and related unaudited statements of operationsincome, partnersstockholders’ equity and cash flows flows, showing the financial condition of KAC and the Subsidiaries on a consolidated basis as of the end close of such Fiscal Quarter and for the results of their operations during such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearapplicable 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 a Financial Officer of the Financial Officers of the Borrower Representative KAC as fairly presenting fairly in all material respects the financial condition and results of operations of Holdings KAC and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of such Fiscal Quarter, all such consolidating financial statements showing separately the financial condition of KAC, the Borrowers other than KAC (as a single group) and the Subsidiaries which are not Borrowers (as a single group); provided that any document required to be delivered pursuant to this Section 5.1(a)(ii) shall be deemed to have been furnished to Agent if the Borrowers have provided Agent with a link to such documents that have been made available through their website or that have been filed with the SEC via EXXXX;
(ciii) within if an Increased Reporting Period is in effect, as soon as available, but no more than 30 days after the end of each fiscal month Fiscal Month, the unaudited consolidated balance sheet as of the close of such Fiscal Month and related unaudited consolidated statements of income and cash flow of KAC and the Subsidiaries during such Fiscal Month and the Fiscal Year to date period;
(other than for the third, sixth and ninth month of any fiscal yeariv) (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) Section 5.1(a)(i), 5.1(a)(ii), or (b5.1(a)(iii) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (bSection 5.1(a)(ii) or 5.1(a)(iii), as presenting fairly in all material respects the financial condition and results of operations of each Borrower KAC and its consolidated the 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 or Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) certifying, in the case of the financial statements delivered under clause (aSection 5.1(a)(ii) onlyor 5.1(a)(iii), stating whether during any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements andCovenant Testing Period, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecompliance with Section 7.1;
(ev) as soon as available, but in any event not more than 30 90 days prior to after the end of each fiscal year of each BorrowerFiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower KAC on a consolidated basis for each month of the upcoming fiscal year then current Fiscal Year (the “Projections”) in form reasonably satisfactory to each Agent;
(fvi) as soon as available available, but in any event (1) if Revolver Usage at all times during the Fiscal Quarter most recently ended is not greater than 35% of the Line Cap, within 30 15 days after the end of each Fiscal Quarter, (2) if Revolver Usage at any time during the Fiscal Month most recently ended is greater than 35% of the Line Cap, within 15 days of the end of such Fiscal Month, or (3) if an Increased Reporting Period is in effect, within three Business Days of the end of each calendar month, and at such other times as may be requested by the Administrative Agentweek (it being understood that a calendar week ends on Sunday), as of the last day of the immediately preceding Fiscal Quarter, Fiscal Month, or calendar week, as the case may be, a Borrowing Base Certificate which calculates the Borrowing Base as of the end of applicable 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 together with supporting information in connection therewith, together with any additional reports with respect to the US Borrowing BaseBase as Agent may reasonably request (provided that delivery of the Borrowing Base Certificate through the Agent’s electronic platform or portal, Canadian subject to Agent’s authentication process, by such other electronic method as may be approved by Agent from time to time in its sole discretion, or by such other electronic input of information necessary to calculate the Borrowing BaseBase as may be approved by Agent from time to time in its sole discretion, UAE shall in each case be deemed to satisfy the obligation of Borrowers to deliver such Borrowing Base Certificate, Singapore with the same legal effect as if such Borrowing Base Certificate or UK Borrowing Base as any Agent may reasonably requesthad been manually executed by Borrowers and delivered to Agent);
(gvii) as soon as available available, but in any event (1) in the case of each of the following other than clause (vii)(F) below, if Revolver Usage at all times during the Fiscal Quarter most recently ended is not greater than 35% of the Line Cap, within 30 15 days after the end of each Fiscal Quarter, (2) in the case of each of the following, if Revolver Usage at any time during the Fiscal Month most recently ended is greater than 35% of the Line Cap, within 15 days of the end of such Fiscal Month, or (3) in the case of clauses (vii)(A), (vii)(B), and (vii)(F) below, if an Increased Reporting Period is in effect, within three Business Days of the end of each calendar month and at such other times as may be requested by the Administrative Agentweek (it being understood that a calendar week ends on Sunday), as of the applicable period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:
(iA) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by invoice date and due date (with a report of any accounts on greater than 60 day terms) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(iiB) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category class (raw material, work-in-process and by value on handfinished goods), which Inventory shall be valued at the lower of cost (determined on a first-in, first-out basis or, subject to verification by Agent or a field examiner pursuant to an Acceptable Appraisal, on a weighted-average cost basis) 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 (C2) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iiiC) a worksheet summary of calculations prepared by the Borrowers to determine categories of Accounts excluded from Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusionInventory;
(ivD) 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 (ivii)(A) and (iivii)(B) above;
(E) a schedule identifying any items of Equipment (and their respective NOLV) that during such period ceased to be included in the PP&E Component; and
(vF) a reconciliation in connection with any transfer, usage, or other disposition by the Loan Parties of cash constituting Eligible Cash constituting 10% or more of the loan balance per Borrowing Base reflected in the Borrowers’ general ledger most recently delivered Borrowing Base Certificate, which transfer, usage, or other disposition results in such cash ceasing to be Eligible Cash, an updated calculation of the loan balance under this Agreementportion of the Borrowing Base comprised of Eligible Cash that reflects such transfer, usage, or other disposition;
(hviii) promptly upon request by Agent in its Permitted Discretion:
(A) a list of all customer addresses, delivered electronically in a text formatted file acceptable to Agent;
(B) for the day specified in such request, a detailed calculation of the amount of Eligible Cash 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 Datesuch day;
(iC) within 30 days for each applicable period specified in such request, an Account roll-forward, in a format acceptable to Agent in its discretion, tied to the beginning and ending account receivable balances of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then endedBorrowers’ general ledger;
(jD) promptly upon any Administrative Agent’s request:a description of all claims, offsets, or disputes then asserted by Account Debtors with respect to each Borrower's Accounts;
(iE) a summary aging, by vendor, of each Loan Party’s accounts payable and any book overdraft and an aging, by vendor, of any held checks;
(F) a detailed report regarding each Loan Party’s and its Subsidiaries' cash and Cash Equivalents, including an indication of which amounts constitute Eligible Cash;
(G) a report regarding each Loan Party’s and its Subsidiaries’ accrued, but unpaid, ad valorem taxes;
(H) a Perfection Certificate or a supplement to the Perfection Certificate (provided, that so long as no Event of Default shall have occurred and be continuing, Agent shall not request a Perfection Certificate or a supplement to the Perfection Certificate more than once per Fiscal Quarter);
(I) copies of purchase orders and invoices for Inventory and Equipment acquired by any Loan Party or its Subsidiaries;
(J) copies of invoices in connection together with the invoices issued by the Borrowers in connection with any Accounts, credit memos, corresponding shipping and delivery documents, and other information related theretocredit memos together with corresponding supporting documentation, with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Agent;
(iiK) copies any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of purchase orders, invoices, and shipping and delivery documents beneficial owners identified in parts (c) or (d) of such certification; and
(L) in connection with any Inventory purchased sales or dispositions by any the Loan PartyParties of assets (other than Eligible Cash) included in the Borrowing Base after the date that the Borrowers delivered the most recently delivered Borrowing Base Certificate, an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base;
(iiiix) promptly after any Borrower obtains knowledge thereof, notice of a schedule detailing material portion of Eligible Accounts, Eligible Inventory or Eligible M&E, as the balance of all intercompany accounts of case may be, becoming ineligible under the Loan PartiesBorrowing Base;
(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;
(mx) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, 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; provided that any documents required to be delivered pursuant to this Section 5.1(a)(x) promptly upon shall be deemed to have been delivered on the request of the Administrative date on which KAC provides Agent (a link to where such documents were filed electronically via EXXXX 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 Debtorsuch documents have been made publicly available on its website; and
(oxi) 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 Agent or any Agent Lender, acting through Agent, may reasonably request. Notwithstanding the foregoing, upon the occurrence .
(b) The Borrowers will use commercially reasonable efforts in cooperation with Agent to facilitate and during the continuance implement a system of an Event electronic collateral reporting in order to provide electronic reporting 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 each 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, applicable items set forth in which event, in the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesthis Section 5.1.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Representative will furnish to the Administrative Agent, and in the case of documents and information required for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants; provided that the requirements of this clause (a) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a consolidated annual report for the Company and its Subsidiaries containing the foregoing information on form 10-K in the time period specified above in this clause (a);
(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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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; provided that the requirements of this clause (b) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a quarterly report for the Company and its Subsidiaries containing the foregoing information on form 10-Q in the time period specified above in this clause (b);
(c) During any Increased Reporting Period, 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 BorrowerCompany, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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., all certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate, which shall (i) certifying, in when delivered concurrently with the case delivery of the financial statements delivered under clause (b) or (c), as presenting certify that such financial statements present fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 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, (iii) setting set forth reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.13 6.12, and (iv) in the case of financial statements delivered under clause (a) only, stating state whether any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (v) describe whether, since the later of the Effective Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) change its organization identification number, if any, issued by its state or province of incorporation or other organization, or (E) changed its state or province of incorporation or organization;
(e) as soon as available, but in any event not more [Reserved];
(f) no later than 30 60 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower the Company for each month quarter of the upcoming such fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Administrative Agent (it being understood that the Company’s customary format consistent with the format delivered to the Administrative Agent in connection with the Effective Date will be satisfactory);
(fg) as soon as available but in any event within 30 days on or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, Borrowing Base as of the period then endedmost recently ended fiscal quarter, a US fiscal month or week, as applicable, to which such 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 therewithReporting Date relates, together with supporting information and 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 that the Administrative Agent may reasonably request; and the Real Property Component of the Borrowing Base shall be updated immediately upon any Real Estate ceasing to be Eligible Real Property;
(gh) as soon as available but in any event within 30 days of on or before each Borrowing Base Reporting Date, the end of each calendar month and at such other times as may be requested by the Administrative Agent, following information as of the period then endedmost recently ended fiscal quarter, fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text or Microsoft Excel formatted file in form reasonably acceptable to each the Administrative Agent:
(i) (A) to the extent Eligible Trade Accounts are included in the Borrowing Base as of such date, a reasonably detailed aging of the BorrowersLoan Parties’ 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 Accounts, in a manner form reasonably acceptable to the Administrative Agent together with Agent, and (B) a summary specifying reasonably detailed aging of the name and balance due for each Account DebtorLoan Parties’ Credit Card Accounts, in a form reasonably acceptable to the Administrative Agent;
(ii) a schedule detailing each Borrowersthe Loan Parties’ 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 Loan Parties to determine Eligible Credit Card Accounts, Eligible Trade Accounts and Eligible Inventory, such worksheets detailing the Credit Card Accounts, Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Credit Card Accounts, Accounts and Inventory between (A) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(v) if there are Eligible Trade Accounts included in the Borrowing Base, a reconciliation schedule of the loan balance per the BorrowersLoan Parties’ 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 (accounts payable as of the month then ended), an accounts payable forecast or aging consisting of delivered electronically in a break down of accounts by due date text formatted file in a form substantially similar reasonably acceptable to the form of accounts payable forecast provided Administrative Agent; and
(vi) such other information as the Administrative Agent may from time to time reasonably request.
(i) concurrent with any field exam permitted under Section 5.06 (or at such other times as agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide notice to the Administrative Agent on of any removal or prior addition of any credit card issuer or credit card processor to the Closing Date;
extent that (i) within 30 days in the case of a removal, Credit Card Accounts of such credit card issuer or credit card processor were included in any previous Borrowing Base or (ii) in the end case of an addition, the Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit card processor in the Borrowing Base, and concurrently with any such notice of an addition, the Company shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor, (B) a true and complete copy of each calendar monthCredit Card Agreement with respect thereto, together with all material amendments, waivers and other modifications thereto, and (C) such other information with respect thereto as may be reasonably requested by the Administrative Agent; for the avoidance of doubt, unless otherwise agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card processor may be included in the Borrowing Base until a report listing all outstanding Swap Obligations as of the month then endedfield exam with respect thereto has been completed;
(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 the Company or any Subsidiary with the Securities and Exchange Commission, SEC or any Governmental Authority succeeding to any Canadian federal or all of the functions of said Commissionprovincial securities commission, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be;
(nA) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan and is eligible to request such documents or notices, the applicable Loan Party or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof and (B) promptly after the filing thereof with any Governmental Authority, a copy of each actuarial valuation report and, upon the request of the Administrative Agent Agent, Annual Information Return in respect of any Canadian Benefit Plan (other than a Canadian MEPP) or a Canadian Pension Plan;
(i) where an actuarial report on a Canadian Defined Benefit Plan discloses a solvency or wind-up deficiency, on a quarterly basis thereafter whenever and for so long as a solvency or wind-up deficiency exists promptly following the end of each fiscal quarter of a Canadian Borrower, a summary actuarial update for such Canadian Defined Benefit Plan, which summary update shall reflect the updated value of the assets of the Canadian Defined Benefit Plan and discount rates at the end of the quarter to which the summary relates but otherwise utilizing the facts and assumptions set forth in the most recently delivered actuarial report, and (ii) when requested by the Administrative Agent, the most recent defined benefit Canadian Defined Benefit Plan financial statements;
(m) within five (5) Business Days after a Responsible Officer of the Borrower Representative has knowledge of the production or the Singapore Administrative Agent receipt by a Loan Party thereof, copies of (i) any material environmental reports produced by or the UAE Administrative agent on behalf of any Loan Party or Restricted Subsidiary or (ii) any notice received or sent by any Loan Party or Restricted Subsidiary 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 DebtorSpecified Environmental Order; and
(on) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding The Borrower Representative shall be deemed to have furnished to the foregoingAdministrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.01(j) upon (i) the filing of such financial statements or material by the Company through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the Company of such financial statements on its website, upon so long as such system or website is publicly available; provided that, at the occurrence and during request of the continuance of an Event of Default Administrative Agent 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 $10,000,000Lender, 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 Representative shall promptly deliver electronic 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 paper copies of such certificatesfilings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableLender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Lender (without a “going concern” or like qualification qualification, commentary or exception 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 the Borrower 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently 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) aboveabove (collectively or individually, as the context requires, the “Financial Statements”), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F A (i) certifying, in the case of the financial statements Financial Statements delivered under clause (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently 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 Sections 6.12(a) and (b) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements Financial Statements accompanying such certificate;
(ed) as soon as available, but in any event not more no later than 30 the end of, and no earlier than 60 days prior to the end of of, each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Lender;
(fg) 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 AgentLender, as of the period then ended, (i) 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 the Lender 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) request and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ general ledger all new orders and backlog reports, all in form and detail satisfactory to the loan balance under this AgreementLender;
(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.
Appears in 1 contract
Samples: Credit Agreement (Arotech Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, Agent (and in the case of documents and information required to be delivered by the UAE Borrower and the Singapore Borrower, also Administrative Agent shall thereafter furnish to the UAE Administrative Lenders to the extent requested) and, with respect to the certificate specified in Section 5.1(q) hereof, the US Collateral Agent and the Singapore Administrative Canadian Collateral Agent, as applicable:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partners’ stockholders' 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 20 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 BorrowerCompany, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders' equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (aSection 5.1(a), Section 5.1(b) or (bSection 5.1(c) above, a certificate of a Financial Officer of each of the 105 Borrower Representative Representatives in substantially the form of Exhibit F EXHIBIT E (i) certifying, in the case of the financial statements delivered under clause (bSection 5.1(b) or Section 5.1(c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 6.1, Section 6.4, Section 6.5, Section 6.7, Section 6.12 and 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 referred to in Section 3.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under Section 5.1(a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 60 days prior to nor more than 30 days after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company and its Subsidiaries for each month of the upcoming fiscal year (“Projections”the "PROJECTIONS") in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar month, and at such other times as may be necessary to re-determine availability of Advances hereunder or 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 an Export-Related Borrowing Base Certificate and a UK Borrowing Base Certificateand, and in each case, supporting information in connection therewith, together with any additional reports with respect to the US Borrowing Base, the Export-Related Borrowing Base and the Canadian Borrowing BaseBase as the Administrative Agent may reasonably request; provided that if (i) prior to the Step-Up Date Availability is less than $25,000,000 or (ii) following the Step-Up Date Availability is less than $30,000,000, UAE the Administrative Agent, in its sole discretion, may require the delivery of a US Borrowing Base Certificate, Singapore a Canadian Borrowing Base Certificate, an Export-Related Borrowing Base Certificate and supporting information more often than monthly, including weekly or UK daily, in which event the US Borrowing Base, the Export-Related Borrowing Base as any Agent may reasonably requestand the Canadian Borrowing Base would be adjusted immediately upon receipt of such reports;
(gh) as soon as available but in any event within 30 20 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:(not in an Adobe *.pdf file):
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s ' Accounts (A) including all invoices aged by invoice date and 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 an explanation 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 (iterms offered) 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.
Appears in 1 contract
Samples: Credit Agreement (Stewart & Stevenson Funding Corp.)
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:
Lender: (a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 any “Big Four” accounting firm or any other independent public accountants of recognized national standing and reasonably acceptable to the Required Lenders Lender (without a “going concern” or like qualification qualification, commentary or exception 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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.,
Appears in 1 contract
Samples: Credit Agreement (Harmonic Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required Agent (with copies to be delivered provided to each Lender 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or another registered public accountants accounting firm 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 the Company and its consolidated Subsidiaries 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries 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 C (each, a “Compliance Certificate”) (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 the Company and its consolidated Subsidiaries 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 the calculation of the Fixed Charge Coverage Ratio in accordance with Section 6.13 6.15, whether or not such covenant is then applicable, together with supporting information in connection therewith 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, but in any event not more than 30 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available available, but in any event within 30 days 15 Business Days of the end of each calendar quarter (or (i) within 15 Business Days of the end of each month for which, at any time during such month, there were Revolving Loans outstanding or the LC Exposure, was in excess of $200,000,000 and at such other times as may be requested by the Administrative Agent, as (ii) within three Business Days of the period then endedend of each week at any time during a Level 3 Minimum Aggregate Availability Period), an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK Puerto Rican Borrowing Base Certificate, in each case which calculates such Borrowing Base, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, the Canadian Borrowing Base, UAE Base or the Puerto Rican Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base of a Borrower as any the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 days 15 Business Days of the end of each calendar quarter (or (i) within 15 Business Days of the end of each month for which, at any time during such month, there were Revolving Loans outstanding or the LC Exposure, was in excess of $200,000,000 and (ii), within three Business Days of the end of each week at any time during a Level 3 Minimum Aggregate Availability Period) and at such other times as may be reasonably 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:Borrowing Base Supplemental Documentation.
(h) (i) at any time that (x) a detailed aging Letter of Credit is issued or amended such that after such issuance or amendment the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by due date (with outstanding LC Exposure, exceeds $200,000,000 or a report of any accounts on greater than 60 day terms) Revolving Loan or Swingline Loan is made and (By) reconciled to the applicable a Borrowing Base Certificate delivered and related reporting has not been provided as of the last day of the month most recently ended at least 15 Business Days prior to such date prepared in a manner reasonably acceptable extension of credit, the Borrowers will furnish to the Administrative Agent together (with a summary specifying the name and balance due for copies to be provided to each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to Lender by 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 available, but in any event within 30 days 15 Business Days of the end such extension of credit, an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate and a Puerto Rican Borrowing Base Certificate, in each calendar month (case which calculates such Borrowing Base as of the month then endedlast day of such month, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, the Canadian Borrowing Base or the Puerto Rican Borrowing Base of a Borrower as the Administrative Agent may reasonably request and (ii) prior to any Disposition (or series of related Dispositions) of assets included in the Aggregate Borrowing Base with a fair market value in excess of $25,000,000 (other than any Disposition (x) by a Loan Party to a US Loan Party or Puerto Rican Loan Party, (y) by a Canadian Party to another Canadian Loan Party or (z) of Inventory in the ordinary course of business), 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 Borrowers will furnish to the Administrative Agent on (with copies to be provided to each Lender by the Administrative Agent) an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate and a Puerto Rican Borrowing Base Certificate, in each case which calculates such Borrowing Base after giving pro forma effect to such Disposition (or series of related Dispositions) as of the last day of the most recently ended calendar month ended at least 15 Business Days prior to such Disposition (or series of related Dispositions), and supporting information in connection therewith, together with any additional reports with respect to the Closing DateAggregate Borrowing Base, the US Borrowing Base, the Canadian Borrowing Base or the Puerto Rican Borrowing Base of a Borrower as the Administrative Agent may reasonably request;
(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 Borrower or any Subsidiarysubsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender (through the Administrative Agent) may reasonably request. Notwithstanding ;
(j) together with each delivery of a Borrowing Base Certificate pursuant to this Section 5.01, a memorandum of the foregoingCompany summarizing the then-existing Sold A/R, upon including a summary of the occurrence and during Sold A/R which has become ineligible under the continuance terms 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 Sold A/R program and/or would otherwise not constitute “Eligible Accounts” hereunder; and
(k) simultaneously with the delivery of the reportseach set of consolidated financial statements, certificates and other documents or projections required to be delivered by Sections 5.01(f)this Section 5.01, a reconciliation reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (g)if any) from such consolidated financial statements, and (h) (with respect to the US Borrowers, UK Borrower certificates 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 certificatesprojections.
Appears in 1 contract
Samples: Credit Agreement (ODP Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableeach Finance Party:
(a) on each Reporting Date (commencing with the first Reporting Date to occur one month after the Closing Date), the Servicing Report;
(b) within 90 one hundred and twenty (120) days after the end of each fiscal year of Holdingsthe Parent Guarantor, its audited consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 yearyear and separately breaking out the Borrower, all reported on by independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “"going concern” " or like qualification qualification, commentary 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 the Parent Guarantor and its consolidated Subsidiaries on a consolidated basis subsidiaries in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(bc) within 45 forty-five (45) days after the end of each fiscal quarter of the first three fiscal quarters of Holdings Parent Guarantor (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 beginning with the fiscal quarter ended June ending March 30, 2007 (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period2023), its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 quarter and separately breaking out 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 footnotesBorrower;
(cd) within 30 as soon as available but in any event no later than thirty (30) days after the end of each fiscal month of, and no earlier than thirty (other than for the third, sixth and ninth month of any fiscal year30) (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 of, each fiscal year of each the Borrower, (i) a copy of the plan and forecast performance projections in relation to Line of Credit Loan Receivables (including the "Projections"); and (ii) a projected consolidated and consolidating balance sheet, income statement and funds flow statement) cashflow statement of each Borrower the Borrower, for each month of the upcoming fiscal year (“Projections”) in form reasonably satisfactory to each the Administrative Agent, which such report shall be updated monthly or at the request of any Finance Party;
(fe) as soon as available but in any event within 30 days of on each Weekly Settlement Date, Reporting Date, on the end date of each calendar month, Borrowing Request and at such other times or 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 the Administrative Agent may reasonably request;
(gf) 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 Agent, an Ontario Limited Partnership Report for the Borrower from the appropriate governmental officer;
(or g) promptly after any request therefor by the Singapore Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the UAE Administrative agent Borrower or any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtorshall provide copies of such documents and notices promptly after receipt thereof; and
(oh) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiarythe Borrower, or compliance with the terms of this Agreement, as any Agent Finance Party 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.
Appears in 1 contract
Samples: Asset Backed Revolving Credit Agreement (CURO Group Holdings Corp.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 ninety (90) days after the end of each fiscal year of HoldingsAPLP, its the audited consolidated balance sheet of APLP and its consolidated Subsidiaries and related statements of operations, partnersstockholders’ 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 qualification, commentary or exception other than solely with respect to an upcoming maturity date of Indebtedness or a potential inability to satisfy a financial covenant, 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 APLP and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied applied (except as set forth therein); provided that the Borrower shall be deemed to have furnished the information required by this clause (a) if APLP shall have timely made the same available on “XXXXX” (or any management letter prepared by said accountantssuccessor thereto) and/or on its home page on the worldwide web (currently located at xxxx://xxx.xxxxxxxx.xxx);
(b) within 45 sixty (60) 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)APLP, commencing with the fiscal quarter ended June 30, 2007 (consolidated balance sheet of APLP 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 Subsidiaries and related statements of operations, partners’ stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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;; provided that the Borrower shall be deemed to have furnished the information required by this clause (b) if APLP shall have timely made the same available on “XXXXX” (or any successor thereto) and/or on its home page on the worldwide web (currently located at xxxx://xxx.xxxxxxxx.xxx); 89 US 4894648v.16
(c) within 30 days after the end of each fiscal month ten (other than for the third, sixth and ninth month 10) Business Days 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 delivery 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 deemed delivery of financial statements under clause (a) or (b) above (but in any case no later than (x) ninety (90) days after the end of each fiscal year of APLP in the case of the financial statements required to be delivered pursuant to clause (a) above or (y) sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of APLP in the case of the financial statements required to be delivered pursuant to clause (b) above), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (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 APLP and its consolidated Restricted Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently appliedapplied (except as set forth therein), subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred then exists and, if a Default has occurredthen exists, 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 6.12, (iv) unless disclosed in the case of financial statements delivered under clause (a) onlyaccompanying such certificate, stating whether any change in GAAP or in the application thereof that impacts such financial statements has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect on such financial statements, (v) setting forth, in form and substance satisfactory to the Administrative Agent, as of the date of such change certificate a true and complete list of all Swap Agreements (including commodity price swap agreements, forward agreements or contracts of sale which provide for prepayment for deferred shipment or delivery of oil, gas or other commodities) to which any Loan Party or any of its Restricted Subsidiaries is a party, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx to market value therefor, any new credit support agreements relating thereto not listed in Schedule 1.01, any margin required or supplied under any credit support document, and the counterparty to each such agreement, (vi) at any time that any of the consolidated Subsidiaries of APLP are not consolidated Restricted Subsidiaries, setting forth consolidating information that summarizes in reasonable detail the differences between the information that relating to APLP and its consolidated Restricted Subsidiaries, on the financial statements accompanying one hand, and all consolidated Unrestricted Subsidiaries, on the other hand, which consolidating information shall be certified by a Financial Officer of the Borrower as having been fairly presented in all material respects and (vii) setting forth a description of any options, warrants, calls or commitments of any character whatsoever (if any) which exist as of the date of such certificatecertificate relating to the Pledged Collateral (as defined in the Security Agreement) or obligate the issuer of any Equity Interest included in the Pledged Collateral to issue additional Equity Interests;
(d) within twenty (20) Business Days of the end of each calendar month or, at any time that Availability is less than the Threshold Amount, on or prior to (3) Business Days after the end of each calendar week, and at such other times as may be necessary to re-determine Availability or as may be requested by the Borrower, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request;
(e) as soon as available, but in any event not more than 30 within ninety (90) days prior to after the end of each fiscal year of each BorrowerAPLP, a copy consolidated budget for APLP and its consolidated Restricted Subsidiaries consisting of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement of APLP and funds flow statement) of each Borrower its consolidated Restricted Subsidiaries and the related US 4894648v.16 capital budget for each month of the upcoming fiscal year (“Projections”) year, in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 days twenty (20) Business Days of the end of each calendar month, or, at any time that Availability is less than the Threshold Amount, on or prior to (3) Business Days after the end of each calendar week, as of the period then ended (all delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent):
(i) a detailed aging of the Borrower’s and Subsidiary Guarantors’ Accounts, including all invoices aged by due date;
(ii) a schedule detailing the Borrower’s and Subsidiary Guarantors’ Inventory and Compression Units, in form reasonably satisfactory to the Administrative Agent, at net book value; and
(iii) a worksheet of calculations prepared by the Borrower to determine Eligible Accounts, Eligible Inventory, Eligible Compression Units and Eligible New Compression Units, such worksheets detailing the Accounts, Inventory and Compression Units excluded from Eligible Accounts, Eligible Inventory, Eligible Compression Units and Eligible New Compression Units;
(g) within twenty (20) Business Days of the end of each calendar month and, during a Cash Dominion Trigger Period, at such other times as may be requested by the Administrative Agent, as of the period month then ended, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate schedule 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 BorrowersBorrower’s and Subsidiary Guarantors’ 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 Agreementpayable;
(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 the Administrative Agent’s reasonable 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;
(ivii) 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 the Borrower and its Subsidiariesthe Subsidiary Guarantors, which list shall state the customer’s name, mailing address and phone number and shall be certified as true and correct number, delivered electronically in all material respects by a Financial Officer text formatted file reasonably acceptable to the Administrative Agent; and
(iii) a certificate of good standing or the applicable Borrowersubstantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction;
(mi) promptly after the same become publicly available, but in any event within fifteen (15) days following the date the same are required to be filed with the SEC, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party or any Restricted Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Borrower to its public shareholders generally, as the case may be; provided that the Borrower shall be deemed to have furnished the information required by this clause (i) if APLP shall have timely made the same 91 US 4894648v.16 available on “XXXXX” (or any successor thereto) and/or on its home page on the worldwide web (currently located at xxxx://xxx.xxxxxxxx.xxx);
(nj) promptly upon not later than ten (10) Business Days after entering into (i) any Swap Agreements with any Lender or any Affiliate thereof, written notice setting forth the request of material terms thereof (including the Administrative Agent type, term, effective date, termination date and notional amounts or volumes) and (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 ii) any twelve (12) month periodnew Banking Services Obligation, a summary specifying the name, address and balance due for each Account Debtordescription of such new Banking Services Obligation; and
(ok) promptly following any reasonable request therefor, such other information regarding the operations, material changes in ownership of Equity Interests, business affairs affairs, and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with as the terms of this Agreement, as any Administrative Agent may reasonably request. Notwithstanding request from time to time; provided, however, that none of the foregoingBorrower nor any Restricted Subsidiary shall be required to disclose or provide any information (v) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any of its subsidiaries or any of their respective customers and/or suppliers, upon (w) in respect of which disclosure to the occurrence and during the continuance Administrative Agent or any Lender (or any of an Event their respective representatives) is prohibited by any applicable Requirement of Default Law, (y) that is subject to attorney-client or during any period similar privilege or constitutes attorney work product or (z) in respect of which the aggregate US Availability and Canadian Availability is less than $25,000,000 Borrower or UK Availability is less than $10,000,000, the Administrative Agent, in its sole discretion, may require any Restricted Subsidiary owes confidentiality obligations to any third party; provided further that the delivery of any certification or information shall not constitute a condition precedent to any transaction otherwise permitted hereunder unless such certification or delivery of information is explicitly stated herein as such a condition precedent. The Borrower hereby acknowledges that (a) the reportsAdministrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, certificates and other documents required “Borrower Materials”) by Sections 5.01(f), (g), posting the Borrower Materials on the Platform and (hb) certain of the Lenders may be “public side” Lenders (i.e., Lenders that have personnel that do not wish to receive material non-public information 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 CertificatesHoldings, the applicable Borrowing Base would Borrower, or their respective subsidiaries (“MNPI”) (each, a “Public Lender”)). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be adjusted immediately upon receipt distributed to the Public Lenders by clearly and conspicuously marking the same as “PUBLIC”. By marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat the Borrower Materials as not containing any MNPI (although it may be sensitive and proprietary); provided that to the extent the Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 9.12. The Administrative Agent shall treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of such certificatesthe Platform not designated “Public Side Information.”
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 120 days after the end of each fiscal year of HoldingsHF Foods, its audited consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 qualification, commentary 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 HF Foods 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 forty-five (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)HF Foods, its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 provided, however, that such comparison with respect to statements of members' equity and cash flows shall not be required to be delivered with respect to any fiscal quarter of HF Foods ending prior to the financial statements first anniversary of Edgen/Murray L.P. the First Amendment and its comparable subsidiary until the 2008 fiscal yearRestatement Date), all certified by one of the a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings HF Foods and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments (it being agreed and understood that any such financial statements delivered with respect to the absence fiscal quarter ending September 30, 2019 shall be on a consolidated basis inclusive of footnotesthe B&R Group);
(c) within 30 thirty (30) days after the end of each fiscal month (of HF Foods, other than for the third, sixth and ninth last month of any a fiscal year) (i) of the US Borrowerquarter, 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 unconsolidated balance sheet and related statements of operations and a schedule of distributions and Capital Expendituresoperations, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year;
(d) within 120 days after the end of the fiscal year of B&R Realty ending December 31, 2019, its unaudited consolidated and consolidating balance sheet and related statements of operations, members' 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 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., all certified by a Financial Officer of B&R Realty as presenting fairly in all material respects the financial condition and results of operations of B&R Realty and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(de) [reserved];
(f) concurrently with any delivery of financial statements under clause (a) or (b) aboveabove with respect to a fiscal month that is the last fiscal month of a fiscal quarter, a certificate of a Compliance Certificate executed by the Financial Officer of the Borrower Representative in substantially the form of Exhibit F Representative, (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 HF Foods 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 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(eg) as soon as available, but in any event not more than within 30 days prior to after the end beginning of each fiscal year of each BorrowerHF Foods, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower HF Foods and its Subsidiaries for each month of the upcoming fiscal year (“the "Projections”") in form and detail reasonably satisfactory to each the Administrative Agent;
(fh) as soon as available but in any event within 30 20 days of the end of each calendar monthmonth or within 3 days of the end of each week in the event that Availability falls below the greater of (i) $12,500,000 and (ii) 12.5% of the Revolving Commitment, and at such other times as may be necessary to re-determine Availability or as 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 the Administrative Agent may reasonably request;
(gi) as soon as available but in any event within 30 days of the end of together with each calendar month and at such other times as may be requested by the Administrative AgentBorrowing Base Certificate delivered pursuant to clause (h), as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:the Administrative Agent (not in Adobe *.pdf file):
(i) a detailed aging of the Working Capital Borrowers’ and Eligible Subsidiary’s Accounts (A) ' Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Working Capital Borrowers’ and each Eligible Subsidiary’s ' Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Working Capital Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateWorking Capital Borrowers);
(iii) a worksheet of calculations prepared by the Working Capital 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 Working Capital Borrowers’ and Eligible Subsidiaries’ ' Accounts and Inventory between (A) the amounts shown in the Working Capital Borrowers’ and Eligible Subsidiary’s ' general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (h) above as of such date;
(v) a reconciliation of the loan balance per the Working Capital Borrowers’ ' general ledger to the loan balance under this Agreement;; and
(hvi) as soon as available but in any event within 30 days a schedule and aging of the end of each calendar month (as of the month then ended)Working Capital Borrowers' accounts payable, an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable 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 endedAgent;
(j) promptly upon any the Administrative Agent’s 's request:
(i) copies of invoices in connection with the invoices issued by the Working Capital 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 or Equipment purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(iv) copies an updated customer list for the Working Capital Borrowers and their Subsidiaries, which list shall state the customer's name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of each Borrower’s and each Eligible Subsidiary’s the Borrower Representative;
(v) the Working Capital Borrowers' sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and;
(vvi) 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 Tax returns filed by any Loan Party with the U.S. Internal Revenue Service IRS; and
(vii) a certificate of good standing or the relevant tax authority substantive equivalent available in the jurisdiction of any foreign incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such 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;
(mk) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be;
(nl) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Loan Party or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore Borrower applicable Multiemployer Plan, the applicable Loan Party or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtor; andshall provide copies of such documents and notices promptly after receipt thereof;
(om) promptly following any request therefor, (i) such other information regarding the operations, assets, liabilities, changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreementthe Loan Documents, as the Administrative Agent or any Agent Lender may reasonably requestrequest and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable "know your customer" and anti-money laundering rule and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; and
(n) promptly after receipt thereof by any Borrower or any Subsidiary, copies of each notice or other correspondence received from the SEC concerning any investigation or possible investigation or other inquiry by the SEC regarding financial or other operational results of any Borrower or any Subsidiary thereof. Notwithstanding Documents required to be delivered pursuant to Section 5.01(a), (b) or (n) (to the foregoingextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, upon if so delivered, shall be deemed to have been delivered on the occurrence date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and during Retrieval system (XXXXX); or (ii) on which such documents are posted on a Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the continuance of an Event of Default Administrative Agent have access (whether a commercial, third-party website 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, whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, in its sole discretionthe Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by fax or through an Electronic System) of the posting of any such documents and provide to the Administrative Agent through an Electronic System electronic versions (i.e., may require soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by any Borrower with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocuments to it and maintaining its copies of such documents.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdings, its audited consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of operations, partnersoperations and consolidated statements of shareholders’ 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 KPMG LLP or other 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 forty-five (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)Holdings, its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of operations, partnersoperations and consolidated statements of shareholders’ 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 its 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) if the Availability Threshold is not met on any day during any calendar month, within 30 twenty (20) days after the end of each fiscal month (other than for the thirdsuch calendar month, sixth Holdings’ consolidated and ninth month of any fiscal year) (i) of the US Borrower, its consolidated consolidating balance sheet sheets and related consolidated and consolidating statements of operations and a schedule consolidated statements of distributions shareholders’ equity and Capital Expenditures cash flows as of the end of and for such fiscal calendar 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., all certified by one of its Financial Officers 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause clauses (b) and (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 6.12, (iv) if Term Loans were outstanding during the period covered by such financial statements, setting forth reasonably detailed calculations of the Rent Adjusted Leverage Ratio and (v) to the extent not discussed in the case of footnotes to financial statements delivered under clause pursuant to clauses (a), (b) onlyand (c) above, 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more no later than 30 the end of, and no earlier than thirty (30) days prior to the end of of, each fiscal year of each BorrowerHoldings, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower Holdings for each month quarter of the upcoming fiscal year (the “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 twenty (20) days after the end of each fiscal quarter of each fiscal year of Holdings (or within twenty (20) days after the end of each calendar month if the Availability Threshold is not met at any time during such calendar month), and at such other times as may be requested by the Administrative AgentAgent upon at least four (4) days’ prior notice to the Borrower, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith (including, in respect of any Borrowing Base Certificate delivered for a month which is also the end of any fiscal quarter of Holdings, a calculation of Average Quarterly Availability for such quarter then ended and an indication of what the Applicable Rate is as a result of such Average Quarterly Availability), together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request; provided that if, at the time the Lenders make any Loan to the Borrower hereunder and the Borrower shall not have delivered a Borrowing Base Certificate within the preceding twenty (20) days, the Borrower shall deliver a Borrowing Base Certificate to the Administrative Agent as soon as available but in any event within ten (10) days of the funding of such Loan, which Borrowing Base Certificate shall set forth the Borrowing Base as of the last day of the calendar month most recently ended;
(h) as soon as available but in any event within twenty (20) days after the end of each fiscal quarter of each fiscal year of Holdings (or within twenty (20) days of the end of each calendar month if the Availability Threshold is not met at any time during such calendar month), and at such other times as may be requested by the Administrative Agent upon at least four (4) days’ prior notice to the Borrower, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiaryeach Loan Party’s Accounts (Abut only a detailed schedule in the case of Credit Card Account Receivables)
(1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered if not then standard) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible SubsidiaryLoan Party’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, (B2) including a report of any variances or other results of Inventory counts performed by such Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by such Loan Party and complaints and claims made against such Loan Party which in excess of the aggregate exceed $50,000 100,000 in such month), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers each Loan Party to determine Eligible Accounts Accounts, Eligible Credit Card Account Receivables and Eligible Inventory, such worksheets detailing the Accounts Accounts, Credit Card Account Receivables and Inventory excluded from Eligible Accounts Accounts, Eligible Credit Card Account Receivables and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts each Loan Party’s Accounts, Credit Card Account Receivables and Inventory between the amounts shown in the Borrowers’ and Eligible Subsidiarysuch Loan Party’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’ each Loan Party’s general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 30 twenty (20) days after the end of each fiscal quarter of each fiscal year of Holdings (or within twenty (20) days after the end of each calendar month if the Availability Threshold is not met at any time during such calendar month), and at such other times as may be requested by the Administrative Agent upon at least four (4) days’ prior notice to the Borrower, as of the month fiscal quarter (or month, if applicable) then ended), an a detailed schedule of each Loan Party’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable 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 endedAgent;
(j) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers each Loan Party in connection with any AccountsAccounts (including, without limitation, Credit Card Account Receivables), 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivk) 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 to the extent 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 thereofAdministrative Agent, 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 jurisdictionService;
(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 Holdings, the Borrower 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 Holdings or its Subsidiaries the Borrower 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
(om) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Holdings, the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the foregoing, upon date on which such documents (i) shall have been posted by the occurrence and during the continuance of an Event of Default Administrative Agent on IntraLinks or during any period in similar site to which the aggregate US Availability Lenders have been granted access or (ii) shall be available on the website of the Securities and Canadian Availability Exchange Commission at xxx.xxx.xxx, provided that Holdings shall have delivered a notice to the Administrative Agent that such information is less than $25,000,000 or UK Availability is less than $10,000,000, so available. Information required to be delivered pursuant to this Section may be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Notwithstanding anything contained herein, in its sole discretion, may require every instance the delivery Borrower shall be required to provide copies of the reports, compliance certificates and other documents required by Sections 5.01(f), clause (g), and (hd) (with respect of this Section 5.01 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 certificatesAdministrative Agent.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative AgentAgent (and the Administrative Agent will promptly thereafter furnish to each Lender or, and in the case of documents clauses (g), (h) and information required to be delivered by the UAE Borrower and the Singapore Borrower(i) below, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:each Revolving Lender):
(a) within 90 days after the end of each fiscal year of HoldingsFiscal Year, commencing with the Fiscal Year ended June 30, 2008, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal 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 the Borrower 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 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)Fiscal Year, commencing with the fiscal quarter ended June Fiscal Quarter ending September 30, 2007 (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period)2008, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 ofthereof) the previous fiscal year (compared to the financial statements of Edgen/Murray L.P. and its comparable subsidiary until the 2008 fiscal year)Fiscal Year, all certified by one of the a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis and consolidating 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 Fiscal Month, commencing with the thirdFiscal Month ended August 31, sixth and ninth month of any fiscal year) (i) of the US Borrower2008, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows as of the end of and for such fiscal month Fiscal Month and the then elapsed portion of the fiscal yearFiscal 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 ofthereof) the previous fiscal year and (ii) each of the UK BorrowerFiscal Year, 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 all certified by 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 the 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;
(d) concurrently with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate (iii) 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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section Sections 6.12 and 6.13 and demonstrating the determination of the Applicable Margin and (iviii) 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 June 30, 2007 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more later than 30 days prior to the end of each fiscal year of each BorrowerFiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Borrower for each month Fiscal Quarter of the upcoming fiscal year Fiscal Year and for each subsequent Fiscal Year through and including the Fiscal Year which includes the Maturity Date of the Term Loans (the “Projections”) ), in form reasonably satisfactory to each the Administrative Agent; provided that, if the period covered by any Projections as described above would include less than three full Fiscal Years, such Projections will also include such additional number of Fiscal Years after the Fiscal Year that includes the Maturity Date as is necessary in order for such Projections to cover three full Fiscal Years;
(fg) as soon as available but in any event within 30 15 days of after the end of each calendar monthFiscal Month, or, if Availability is less than or equal to $5,000,000 at the end of a Fiscal Month, within 15 days after the 15th and last day of each Fiscal Month until the next Fiscal Month end on which Availability is greater than $5,000,000, and at such other times as may be necessary to re-determine Availability or as may be requested by the Administrative Agent or the Collateral 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 the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 15 days of after the end of each calendar month Fiscal Month and at such other times as may be requested by the Administrative Agent or the Collateral Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:(not in an Adobe *.pdf file):
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s (other than the Excluded Subsidiary Guarantors) Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Collateral Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s (other than the Excluded Subsidiary Guarantors) Inventory, in form satisfactory to the Administrative Collateral Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Collateral Agent has previously indicated to the Borrower Representative are deemed by the Administrative Collateral Agent to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns credits issued by any such Loan Party and complaints and claims made against any such Loan Party), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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 BorrowersLoan Parties’ and Eligible Subsidiaries’ (other than the Excluded Subsidiary Guarantors) Accounts and Inventory between the amounts shown in the Borrowerssuch Loan Parties’ and Eligible Subsidiary’s general ledger ledgers and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ Borrower’s general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 30 15 days of after the end of each calendar month (Fiscal Month and at such other times as may be requested by the Administrative Agent or the Collateral Agent, as of the month Fiscal Month then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing Date;
text formatted file (i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then endednot in an Adobe *.pdf file);
(j) within 15 days after the end of each Fiscal Year, and at such other times as may be requested by the Administrative Agent or the Collateral Agent, an updated list of all customer addresses, delivered electronically in a text formatted file (not in an Adobe *.pdf file);
(k) promptly upon any the Administrative Agent’s or the Collateral Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties (other than the Excluded Subsidiary Guarantors) 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 or Equipment purchased by any Loan Party;Party (other than the Excluded Subsidiary Guarantors); and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivl) copies of each Borrower’s and each Eligible Subsidiary’s upon request by the Collateral Agent, the Loan Parties’ (other than the Excluded Subsidiary Guarantors) sales journaljournals, cash receipts journal journals (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; andjournals;
(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.
(km) as soon as possible and in any event within 30 days of after the 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 jurisdictionService;
(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;
(mn) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Borrower or any Subsidiary of its Subsidiaries 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 the Borrower 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 the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding ; and
(p) on or before the foregoingfirst day of December of each Fiscal Year, upon the occurrence evidence in form 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, substance satisfactory to the Administrative Agent, in its sole discretion, may require Agent that the delivery requirements 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 certificatesSection 5.16 have been met.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish furnish, or will cause to be furnished, 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 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its (i) Parent’s audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 PricewaterhouseCoopers LLP or any other independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification qualification, commentary or exception and without any qualification or exception as to the scope of such audit), and (ii) to the effect that such extent different from and not set forth in the information provided pursuant to the foregoing clause (i), consolidating financial information prepared by the Borrower as a schedule to the audited consolidated financial statements, showing any adjustments to the audited consolidated financial statements present which are necessary to demonstrate the financial condition and results of operations of the Borrower and its consolidated Subsidiaries, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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 forty-five (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)the Borrower, 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 i) Parent’s unaudited consolidated and consolidating balance sheet and related statements of operations, partners’ equity operations and cash flows as of the end of and for such fiscal quarter (other than with respect to statements of cash flows) and the then elapsed portion of the such 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 year, and (compared ii) to the extent different from and not set forth in the information provided pursuant to the foregoing clause (i), consolidating financial information prepared by the Borrower as a schedule to the consolidated financial statements, showing any adjustments to the consolidated financial statements which are necessary to demonstrate the financial condition and results of Edgen/Murray L.P. operations of the Borrower and its comparable subsidiary until the 2008 fiscal year)consolidated Subsidiaries, all certified by one of the a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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.[reserved];
(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 Compliance Certificate (i) certifying, in the case of the certifying that such financial statements delivered under clause (b), as presenting fairly present in all material respects the financial condition and results of operations of each the 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 is continuing, and, if a Default has occurredoccurred and is continuing, 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 6.12, regardless of whether such calculations are required to be tested as set forth in Section 6.12 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 most recently delivered pursuant to clause (a) above 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 within sixty (60) days prior to after the end of each fiscal year of each Borrowerthe Parent, but in any event no more than thirty (30) days prior to the end of the previous fiscal year of the Parent, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each the Borrower for each month fiscal quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 twenty-five (25) days of the end of each calendar month, and at such other times as may be requested by necessary to re-determine Availability in the Permitted Discretion of 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 therewiththerewith (including, in respect of any Borrowing Base Certificate delivered for a calendar month which is also the end of any fiscal quarter of the Borrower, as applicable, a calculation of Average Quarterly Availability for such fiscal quarter then ended and an indication of what the Applicable Rate is as a result of such Average Quarterly Availability), 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 the Administrative Agent may reasonably request; provided that, at any time an Accelerated Borrowing Base Delivery Period exists, a Borrowing Base Certificate shall be delivered weekly within three (3) Business Days after the end of each calendar week;
(g) as soon as available but in any event within 30 twenty-five (25) days of the end of each calendar month and at such other times as may be requested by the Administrative Agentor together with any Borrowing Base Certificate delivered pursuant to Section 5.01(f), as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each Agent:the Administrative Agent (and not, for the avoidance of doubt, in an Adobe (.pdf) file):
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) Accounts, 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 invoice date, prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weighted-cost (determined on a weighted average cost basis) 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;; and
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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 ; provided, that at any time an Accelerated Borrowing Base Delivery Period exists, the Administrative Agent, in its sole discretion, may require delivery of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between information required by this clause (g) weekly within three (3) Business Days after 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 end of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreementeach calendar week;
(h) as soon as available but in any event within 30 twenty-five (25) days of the end of each calendar month (or together with any Borrowing Base Certificate delivered pursuant to Section 5.01(f), as of the month period then ended), an aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file reasonably acceptable to the Administrative Agent on or prior to (and not, for the Closing Dateavoidance of doubt, in an Adobe (.pdf) file); provided, that at any time an Accelerated Borrowing Base Delivery Period exists, the Administrative Agent, in its sole discretion, may require delivery of the information required by this clause (h) weekly within three (3) Business Days after the end of each calendar week;
(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 the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties 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;; and
(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 Subsidiariesthe Loan Parties in respect of Account Debtors for Eligible Accounts, which list shall state be in form reasonably satisfactory to the customer’s name, mailing address Administrative Agent and phone number delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borrower;
(mj) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Parent, any Loan Party or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, if applicable, or distributed by any Loan Party or its Subsidiaries such Person to its public shareholders generally, as the case may be;
(nk) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtorshall provide copies of such documents and notices promptly after receipt thereof; and
(ol) promptly following any request therefor, (i) such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably requestrequest and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and Beneficial Ownership Regulation. Notwithstanding Documents required to be delivered pursuant to clauses (a), (b) and (j) of this Section 5.01 and Section 5.02(f) may (but shall not be required to) be delivered electronically and if so delivered, shall be deemed to have been delivered on the foregoingdate on which (i) Parent (or any applicable Loan Party or Subsidiary) posts such documents, upon or provides a link thereto on its website on the occurrence and during the continuance of an Event of Default or during any period in Internet to which the aggregate US Availability Administrative Agent and Canadian Availability is less than $25,000,000 each Lender has access (located at hxxx://xxx.xxxxxxxxxxxxxx.xxx) or UK Availability is less than $10,000,000, (ii) such documents are posted on the Internet website of the SEC (hxxx://xxx.xxx.xxx); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative AgentAgent if the Administrative Agent or any Lender requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or through Electronic Systems) of the posting of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., in its sole discretion, may require soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by the Borrower with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocuments to it and maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (Cactus, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Administrative Borrower 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 HoldingsNavistar International commencing with the fiscal year ended October 31, its audited 2011, a consolidated balance sheet of Navistar International and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, partnerschanges in shareholders’ equity 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 in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by (i) a report and opinion of KPMG, other independent certified public accountant of national recognized standing or other certified public accountants of recognized national standing and reasonably acceptable to the Required Lenders (without a Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception and without or any qualification or exception as to the scope of such audit, (ii) information historically presented in Exhibit 99.1 of Navistar International’s 10-K and (iii) a certificate of a Financial Officer of the Administrative Borrower stating that no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing, a statement as to the effect nature thereof and the action that the Borrowers have taken and proposes to take with respect thereto, provided, that such consolidated financial statements present fairly certificate shall also include a specific certification that no Borrower is engaged in all material respects the financial condition and results business 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;leasing trucks. ABL CREDIT AGREEMENT
(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)Navistar International, commencing with the fiscal quarter ended June 30, 2007 (a consolidated balance sheet of Navistar International and its Subsidiaries as to which such financial statements may be delivered not later than 60 days after at the end of such quarterly period)fiscal quarter, its the related consolidated and consolidating balance sheet and related statements of operationsincome or operations for such fiscal quarter and for the portion of Navistar International’s fiscal year then ended, partnersand the related consolidated statements of changes in shareholders’ equity and cash flows as of for the end of and for such fiscal quarter and the then elapsed portion of the Navistar International’s fiscal yearyear then ended, in each case setting forth in each case in comparative form form, as applicable, the figures for the corresponding period or periods fiscal quarter of (or, in the case of the balance sheet, as of the end of) the previous fiscal year (compared to and the financial statements corresponding portion of Edgen/Murray L.P. and its comparable subsidiary until the 2008 previous fiscal year), all certified in reasonable detail, such consolidated statements to be certificated by one a Financial Officer of the Financial Officers of the Administrative Borrower Representative as fairly presenting fairly in all material respects the financial condition and condition, results of operations operations, shareholder’s equity and cash flows of Holdings Navistar International and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, 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 only to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred andtogether with, 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 for 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 Fiscal Quarter ended on or prior to after 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 certificate by a Financial Officer of the applicable Borrower;
(m) promptly after Administrative Borrower stating that no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing, a statement as to the same become publicly available, copies of all periodic nature thereof and other reports, proxy statements the action that the Borrowers have taken and other materials filed by any Loan Party or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding proposes 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 take with respect to Account Debtors thereto; provided, that such certificate shall also include (x) a specific certification that no Borrower is engaged in the business of leasing trucks and (y) if any Borrower obtains knowledge that the Singapore Borrower and component of such Borrower’s business which constitutes the Dubai “business of leasing” exceeds 5% of such Borrower), but not more than two times in any twelve (12) month ’s aggregate revenues for such quarterly period, a summary specifying notice of such event; provided, however that, in 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 event of any Loan Party or any Subsidiarychange in generally accepted accounting principles used in the preparation of such financial statements, or compliance with the terms Borrowers shall also provide a reconciliation of this Agreement, as any Agent may reasonably requestsuch financial statements to GAAP. Notwithstanding the foregoing, upon (i) in 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, event that the Administrative AgentBorrower delivers to the Administrative Agent an annual report for Navistar International and its Subsidiaries on Form 10-K for any fiscal year, in its sole discretionas filed with the SEC, may require within 90 days after the delivery end of such Fiscal Year, so long as (1) the reports, certificates financial statements therein contain the report and other documents opinion required by Sections 5.01(f)clause (a)(i) of this Section 5.01, (g), 2) the financial statements therein contain the information historically presented in Exhibit 99.1 of Navistar International’s 10-K and (h3) the Administrative Borrower separately delivers the certificate required by clause (with respect a)(iii) of this Section 5.01, such Form 10-K shall satisfy all requirements of paragraph (a) of this Section 5.01 for such Fiscal Year and (ii) in the event that the Administrative Borrower delivers to the US BorrowersAdministrative Agent a quarterly report for Navistar International and its Subsidiaries on Form 10-Q for any fiscal quarter, UK Borrower or Canadian Borrower) more frequently than monthlyas filed with the SEC, including weekly or daily, in which event, in within 45 days after the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt end of such certificatesfiscal quarter, so long as (1) the financial statements therein comply with the requirements set forth in paragraph (b) of this Section 5.01, (2) the financial statements therein contain the information historically presented in Exhibit 99.1 of Navistar International’s 10-K and (3) the Administrative Borrower separately delivers the certificate and certifications required by paragraph (b) of this Section 5.01, such Form 10-Q shall satisfy all requirements of paragraph (b)(i) of this Section 5.01 for such fiscal quarter.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required Agent (for delivery to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:each Lender):
(a) on or before the date upon which the Company’s annual report on Form 10-K is required to be filed with the SEC (and in any event within 90 105 days after the end of each fiscal year of HoldingsFiscal Year), its the Company’s (i) audited consolidated balance sheet and related statements of operationsincome, partnersstockholders’ equity and cash flows flows, showing the financial condition of the Company and the Subsidiaries on a consolidated basis as of the end close of such Fiscal Year and for the results of their operations during such yearFiscal Year, setting forth in each case in comparative form the figures such consolidated financial statements to be audited for the previous fiscal year, all reported on Company and the Subsidiaries by Deloitte & Touche LLP or other independent public accountants of recognized national standing and acceptable to the Required Lenders accompanied by an audit opinion of such accountants (without (A) a “going concern” or like qualification qualification, exception or exception explanatory paragraph and without (B) any qualification or exception as to the scope of such audit) and to be certified by a Financial Officer of the Company to the effect that such consolidated financial statements fairly present fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, accompanied by and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the fourth Fiscal Quarter and as of the close of such Fiscal Year, all such consolidating financial statements showing separately the financial condition of the Company and the Subsidiaries; provided, however, that any management letter prepared by said accountantsdocument required to be delivered pursuant to this Section 5.01(a) shall be deemed to have been furnished to the Administrative Agent if the Borrowers have provided the Administrative Agent with a link to such documents that have been made available through their website or that have been filed with the SEC via XXXXX;
(b) on or before the date upon which the Company’s quarterly report on Form 10-Q is required to be filed with the SEC (and in any event within 45 50 days after the end of each of the first three fiscal quarters of Holdings (in the case Fiscal Quarters 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 thereafterCompany), commencing with the fiscal quarter ended June 30, 2007 Company’s (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period), its i) unaudited consolidated and consolidating balance sheet sheets and related unaudited statements of operationsincome, partnersstockholders’ equity and cash flows flows, showing the financial condition of the Company and the Subsidiaries on a consolidated basis as of the end close of such Fiscal Quarter and for the results of their operations during such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearapplicable Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case certified by a Financial Officer of the balance sheet, Company 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 fairly presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of such Fiscal Quarter, all such consolidating financial statements showing separately the financial condition of the Company and the Subsidiaries; provided that any document required to be delivered pursuant to this Section 5.01(b) shall be deemed to have been furnished to the Administrative Agent if the Borrowers have provided the Administrative Agent with a link to such documents that have been made available through their website or that have been filed with the SEC via XXXXX;
(c) within commencing with the first Fiscal Month following the Effective Date as soon as available, but no more than 30 days after the end of each fiscal month Fiscal Month (other than for unless no Loans are outstanding during such Fiscal Month and during 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 30 days following the end of such period or periods of) the previous fiscal year and (ii) each of the UK BorrowerFiscal Month), the UAE Borrower and the Singapore Borrower on an individual (non-consolidated) basis for each such Person, its unaudited consolidated balance sheet and related statements of operations and a schedule of distributions and Capital Expenditures, as of the end close of such Fiscal Month and for such fiscal month related unaudited consolidated statements of income and cash flow of the Company and the then elapsed portion of Subsidiaries during such Fiscal Month and 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.Fiscal Year to date period;
(d) (i) concurrently with any delivery of financial statements under clause paragraph (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause paragraph (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company and its consolidated the 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 or Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) certifying in the case of the financial statements delivered under clause paragraph (ac), (A) onlyif Availability is less than $100,000,000 for any period of five consecutive Business Days during the Fiscal Month with respect to which such financial statements are delivered, stating whether any change in GAAP or in the application thereof has occurred since the date a reasonably detailed calculation of the prior fiscal year’s audited financial statements andFixed Charge Coverage Ratio and (B) during any Covenant Trigger Period, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecompliance with Section 6.12;
(e) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements, if any Default or Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 60 days prior to after the end of each fiscal year of each BorrowerFiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company on a consolidated basis for each month of the upcoming fiscal year then current Fiscal Year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 15 days of the end of each calendar month, and month (or within three Business Days of the end of each calendar week (it being understood that a calendar week ends on Sunday) if Availability is less than 12.5% of the Total Revolving Commitment then in effect at any time during such other times as may be requested by the Administrative Agentcalendar week), as of the last day of the immediately preceding month, or as of the last day of the immediately preceding week, as the case may be, a Borrowing Base Certificate which calculates the Borrowing Base as of the calendar 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 together with 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 the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 15 days of the end of each calendar month (or, in the case of paragraphs (h)(i) and at such other times as may be requested by (h)(ii) below, within three Business Days of the Administrative Agentend of each calendar week (it being understood that a calendar week ends on Sunday) during any Dominion Trigger Period), as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by invoice date and 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 Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category class (raw material, work-in-process and by value on handfinished goods), which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 summary of calculations prepared by the Borrowers to determine categories of Accounts excluded from Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts Receivable and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusionInventory;
(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 paragraphs (ih)(i) and (iih)(ii) above; and
(v) a reconciliation schedule identifying any items of Equipment (and their respective Net Orderly Liquidation Values) that during such period ceased to be included in the loan balance per the Borrowers’ general ledger to the loan balance under this AgreementPP&E Component;
(hi) as soon as available but in any event within 30 days of the end of each calendar month (December 31 and at such other times as may be requested by the Administrative Agent, a list of the month then ended)all customer addresses, an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(ij) promptly after any Borrower obtains knowledge thereof and has reason to know, notice of a material portion of Eligible Accounts, Eligible Inventory or Eligible Equipment, as the case may be, becoming ineligible under the Borrowing Base;
(k) within 30 days of the end first Business Day of each calendar monthMarch and September, a report listing all outstanding Swap Obligations as certificate 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 good standing for each Borrower during from the immediately preceding calendar month and a detailed listing appropriate governmental officer in its jurisdiction 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 thereofincorporation, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service formation or the relevant tax authority of any foreign jurisdictionorganization;
(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 Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, 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;
; provided that any documents required to be delivered pursuant to this paragraph (nl) promptly upon shall be deemed to have been delivered on the request of date on which the Company provides the Administrative Agent (a link to where such documents were filed electronically via XXXXX 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 Debtorsuch documents have been made publicly available on its website; and
(om) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender, acting through the Administrative Agent, may reasonably request. Notwithstanding The Administrative Agent shall deliver to the foregoing, upon the occurrence and during the continuance Lenders all documents that are received by it pursuant to this Section as provided in Section 9.01(b) or by posting such documents to Intralinks or an equivalent means of an Event of Default or during any period in electronic delivery to 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 certificatesLenders have access.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and Agent (which shall in the case of documents and information required turn furnish to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:each other Lender Party):
(a) within 90 days after the end of each fiscal year of HoldingsFiscal Year, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such yearFiscal Year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous fiscal yearFiscal Year, all reported on by a “Big Four” accounting firm, or other independent public accountants of recognized national standing and that are reasonably acceptable to the Required Lenders Administrative Agent (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 the Company on a consolidated basis in accordance with GAAP consistently appliedbasis, accompanied by any final management letter prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of Holdings (in Fiscal Quarters, 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 Company’s unaudited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 footnotesFiscal Year;
(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 paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate, (i) certifying, in the case of the financial statements delivered under clause paragraph (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower and its consolidated Subsidiaries the Company on a consolidated and consolidating basis in accordance with GAAP consistently appliedbasis, subject to normal year-end audit adjustments and the absence of footnotes, ; (ii) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event of 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 6.13; and (iv) in the case of financial statements delivered under clause (a) only, stating whether any applicable change in GAAP that has a material effect on any financial statements or in the application thereof has occurred since the later of the date of the audited financial statements referred to in Section 3.04 and the date of the prior fiscal year’s audited financial statements certificate delivered pursuant to this paragraph (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) [Reserved];
(e) as soon as available, but in any event not more than 30 60 days prior to following the end beginning of each fiscal year of each BorrowerFiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement of cash flow) of each Borrower the Company for each month quarter of the upcoming fiscal year (“Projections”) Fiscal Year, in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 days 10 Business Days after the end of each fiscal month (or, within five Business Days after the end of each calendar monthweek (it being understood that a calendar week ends at midnight on Saturday), and at such other times as may be requested by during any Weekly Reporting Period), a Borrowing Base Certificate which calculates the Administrative Agent, Borrowing Base as of the last day of the fiscal 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 together with supporting information in connection therewith, together with therewith and 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 the Administrative Agent may reasonably request;
(g) as soon as available available, but in any event within 30 days 10 Business Days after the end of each fiscal month (or, in the case of paragraphs (g)(i) and (g)(ii) below, within five Business Days after the end of each calendar month week, during any Weekly Reporting Period) and at such other times as may be reasonably requested by the Administrative Agent, as of the fiscal period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed summary aging of the Borrowers’ each Borrower’s and Eligible SubsidiaryLoan Guarantor’s Accounts (A) including all based on invoices aged by invoice date and the balance due date (with a report of any accounts on greater than 60 day terms) and (Bfor each Account Debtor) 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 DebtorAgent;
(ii) a schedule detailing each Borrowers’ Borrower’s and each Eligible SubsidiaryLoan Guarantor’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (work-in-process and finished goods), by product category type and by value volume on hand, which Inventory shall be valued at the lower of weighted-average cost (standard and/or moving average) 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 Inventory aging by fresh plant and prepared foods in excess of $50,000 total, and LOCOM reports to support reserves; 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’ each Borrower’s and Eligible Subsidiaries’ Loan Guarantor’s Accounts and Inventory between the amounts shown in the Borrowers’ each Borrower’s and Eligible SubsidiaryLoan Guarantor’s general ledger and financial statements and the reports delivered pursuant to clauses paragraph (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ each Borrower’s and Loan Guarantor’s 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[Reserved];
(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 periodic reports on Form 10-K, Form 10-Q and Form 8-K that are filed by any Loan Party the Company or any Subsidiary with the Securities and Exchange Commission, SEC 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;
; provided that any documents required to be delivered pursuant to paragraphs (na) promptly upon and (b) and this paragraph (i) shall be deemed to have been delivered on the request of date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet; or (ii) on which such documents are posted on the Company’s behalf on the Platform or another relevant website, if any to which each Lender Party has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); and provided, further, that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent (or of the Singapore posting of any such documents and provide to the Administrative Agent or the UAE Administrative agent with respect to Account Debtors by electronic mail electronic versions (i.e., soft copies) 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 Debtorsuch documents; and
(oj) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent other Lender Party 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required Agent (with copies to be delivered provided to each Lender 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or another registered public accountants accounting firm 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 the Company and its consolidated Subsidiaries Ssubsidiaries 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries Ssubsidiaries 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 C (each, a “Compliance Certificate”) (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 the Company and its consolidated Subsidiaries Ssubsidiaries 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 6.15 (to the extent applicable) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, but in any event not more than 30 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available available, but in any event within 30 days 15 Business Days of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as month (or within three Business Days of the period then endedend of each week at any time during a Level 2 Minimum Aggregate Availability Period), an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore UK Borrowing Base Certificate and a UK Dutch Borrowing Base Certificate, in each case which calculates such Borrowing Base, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, Canadian Borrowing Base, UAE the UK Borrowing Base Certificate, Singapore or the Dutch Borrowing Base of a Borrower as the Administrative Agent or either Collateral Agent may reasonably request; provided that no UK Borrowing Base Certificate or UK Dutch Borrowing Base as any Agent may reasonably requestCertificate or additional reports with respect thereto shall be required if the European Sublimit shall have been terminated;
(g) as soon as available but in any event within 30 days 15 Business Days of the end of each calendar month (or, except as otherwise provided for on Schedule 5.01(g), within three Business Days of the end of each week at any time during a Xxxxx 0 Xxxxxxx Xxxxxxxxx Availability Period) and at such other times as may be reasonably requested by the Administrative Agent or either Collateral 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;Supplemental Documentation.
(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 45 days of each March 31 and September 30, in the case of the US Loan Parties, and concurrently with any delivery of financial statements under paragraphs (a) and (b) above (or within 15 days of the end of each calendar month during any European Full Cash Dominion Period, in the case of the European Loan Parties), an updated customer list for each Borrower and its SubsidiariesLoan Party, which list shall state the customer’s name, mailing address and phone number (to the extent available) and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borrower;Borrower Representative;[Reserved]
(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
(oi) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any SubsidiarySsubsidiary, 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, either Collateral Agent or any Lender (through the Administrative Agent) may reasonably request; and
(j) as soon as available, but in its sole discretion, may require the delivery any event within 15 Business Days of the reportsend of each calendar month, certificates and other documents required by Sections 5.01(f), (g), and (h) (with respect to a certificate setting forth the US Borrowers, UK Borrower or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in calculation of the case Fixed Charge Coverage Ratio as of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt last day of such certificatescalendar month, together with supporting information in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, Agent (and in the case of documents and information required to be delivered by the UAE Borrower and the Singapore Borrower, also Administrative Agent shall thereafter furnish to the UAE Administrative Lenders to the extent requested) and, with respect to the certificate specified in Section 5.1(q) hereof, the US Collateral Agent and the Singapore Administrative Canadian Collateral Agent, as applicable:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 20 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 BorrowerCompany, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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 , all certified by one of financial statements under clause (a) or (b) above, a certificate of a its 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), Officers as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Representative will furnish to the Administrative Agent, and in the case of documents and information required for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 Within ninety (90) calendar days after the end of each fiscal year year, financial statements of Holdings, the Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of operationsincome, partnersshareholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for such the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent. The certificate or report of accountants shall be free of qualifications (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents.
(b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty- five (45) calendar days after the end of any such fiscal quarter, financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in each case in comparative form the figures respective financial statements for the corresponding date and period in the previous fiscal year.
(c) [Reserved].
(d) Concurrently with any delivery of financial statements under clause (a) or (b) above, all reported on by independent public accountants a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of recognized national standing and acceptable to the Required Lenders financial statements delivered under clause (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 b), certify 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 Company 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 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, (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 state whether any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;, (iv) describe whether, since the later of the date hereof and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, or (E) changed its state of incorporation or organization, (v) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (vi) solely during a Covenant Compliance Event, certify as to, and contain a calculation of, the Fixed Charge Coverage Ratio for the applicable measurement period required by Section 6.12.
(e) as soon as available, but in any event not more than 30 days prior to the end of On or before each fiscal year of each BorrowerBorrowing Base Reporting Date, a copy Borrowing Base Certificate setting forth a computation 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, Borrowing Base as of the period then endedmost recently ended fiscal quarter, a US month or week, as applicable, to which such 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 therewithReporting Date relates, together with supporting information and 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 that the Administrative Agent may reasonably request;.
(gf) as soon as available but in any event within 30 days of On or before each Borrowing Base Reporting Date, the end of each calendar month and at such other times as may be requested by the Administrative Agent, following information as of the period then endedmost recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text or Microsoft Excel formatted file in form reasonably acceptable to each the Administrative Agent:
(i) a reasonably detailed aging of the BorrowersLoan Parties’ 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 DebtorCredit Card Accounts;
(ii) a schedule detailing each Borrowersthe Loan Parties’ 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 Loan Parties to determine Eligible Accounts Credit Card Accounts, Eligible Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts and Inventory excluded from Eligible Accounts Credit Card Accounts, Eligible Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
(iv) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Credit Card Accounts and Inventory between between
(A) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (e) above as of such date; and
(v) a reconciliation of such other information regarding the loan balance per Collateral or Loan Parties as the Borrowers’ general ledger Administrative Agent may from time to time reasonably request.
(g) Concurrent with any field exam permitted under Section 5.07 (or at such other times as agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide notice to the loan balance under this Agreement;Administrative Agent of any removal or addition of any credit card issuer or credit card processor to the extent that (i) in the case of a removal, Credit Card Accounts of such credit card issuer or credit card processor were included in any previous Borrowing Base or (ii) in the case of an addition, the Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit card processor in the Borrowing Base, and concurrently with any such notice of an addition, the Company shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor, (B) a true and complete copy of each Credit Card Agreement with respect thereto, together with all material amendments, waivers and other modifications thereto, and (C) such other information with respect thereto as may be reasonably requested by the Administrative Agent; for the avoidance of doubt, unless otherwise agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card processor may be included in the Borrowing Base until a field exam with respect thereto has been completed.
(h) as soon as available but in Concurrent with delivery thereof to an Other Secured Debt Agent, any event within 30 days additional (or more frequent) information or reports provided to an Other Secured Debt Agent pursuant to an Other Secured Debt Loan Agreement (without duplication of the end of each calendar month (as of the month then endedreports delivered under this Agreement), an accounts payable forecast or aging consisting of a break down of accounts by due date in a form substantially similar . The Borrower Representative shall be deemed to the form of accounts payable forecast provided have furnished to the Administrative Agent on the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.02(p)(iv) upon the filing of such financial statements 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 material by the Borrowers in connection with Company through the SEC’s XXXXX system (or any Accountssuccessor electronic gathering system) or the publication by the Company of such financial statements on its website, credit memosso long as such system or website is publicly available; provided that, 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 shall, at 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 reasonable 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 SubsidiaryLender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or compliance other supporting documentation included 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 certificatesfiling.
Appears in 1 contract
Samples: Credit Agreement (Big Lots Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers REIT and the Borrower 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:Lender: AUS:0041907/00169:444711v12 39
(a) within 90 one hundred twenty (120) days after the end of each fiscal year of Holdingsthe REIT and the Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Lender (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 the REIT and the Borrower 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 forty-five (45) days after the end of each fiscal quarter of the first three fiscal quarters of Holdings (in REIT and 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 its Certifying Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the REIT and the Borrower 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 Certifying Officer of the Borrower Representative REIT in substantially the form of Exhibit F B (i) certifying, in the case of the financial statements delivered under clause (b), certifying as presenting fairly in all material respects the financial condition and results of operations of each the REIT, the Borrower and its their 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 Borrowing Base 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 unaudited financial statements referred to in Section 3.04 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;
(fd) 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 necessary to re-determine availability of Advances hereunder or as requested by the Administrative AgentLender, 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, including without limitation, operating statements and rent rolls for each Borrowing Base Property included in the Borrowing Base, 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 the Lender may reasonably request;
(ge) 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 Agentavailable, 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 monthly brokerage statements 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 monthPublicly Traded Equities.
(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
(of) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any the REIT, the Borrower, each other Loan Party Guarantor or any Borrowing Base Subsidiary, or compliance with the terms of this Agreement, as any Agent the Lender 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.
Appears in 1 contract
Samples: Credit Agreement (Macquarie CNL Global Income Trust, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and for distribution to each Lender and, in the case of documents clauses (e), (f) and information required to be delivered by the UAE Borrower and the Singapore Borrower(g), also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableLender Advisors:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related consolidated statements of operations, partners’ comprehensive income, 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 certified by independent public accountants a Financial Officer 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) Company, to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and position, results of operations and cash flows of Holdings the Company and its consolidated Subsidiaries as of the end of and for such fiscal year on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(b) within 45 forty-five (45) days after the end of each of the first three (3) 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows as of the end of such fiscal quarter, the related consolidated statements of operations and comprehensive income for such fiscal quarter and the then elapsed portion of the fiscal year and the related consolidated statement of 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 (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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly fairly, in all material respects respects, the financial condition and position, results of operations and cash flows of Holdings the Company and its consolidated Subsidiaries as of the end of and for such fiscal quarter and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP, 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.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Ascena Retail Group, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Representative 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 applicableeach Lender:
(a1) within 90 180 days after the end of each fiscal year of HoldingsAllbirds, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary, 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 Allbirds and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b2) 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;[reserved]
(c3) 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 BorrowerAllbirds, its consolidated (and for any fiscal month end that is also the end of a fiscal quarter, accompanied by managerial reporting on a segment-by-segment basis) balance sheet and related consolidated statements statement of operations and a schedule of distributions and Capital Expenditures operations, 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., all certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Allbirds 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;
(d4) concurrently with any delivery of financial statements under clause (aSection 5.01(a) or (b) aboveSection 5.01(c), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause (bSection 5.01(c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower Allbirds and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-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 6.12, 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e5) [reserved]
(6) as soon as available, available but in any event not more no later than 30 60 days prior to after the end first day of each fiscal year of each BorrowerAllbirds, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement statement, and funds cash flow statement) of each Borrower Allbirds for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f7) as soon as available but in any event within 30 days at each of the end of each calendar monthtimes specified in the following table, and at such other times as may be requested by the Administrative Agentnecessary to re-determine Availability, 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 therewiththerewith (including, in respect of any Borrowing Base Certificate delivered for the last day of any month that is also the end of any fiscal quarter of Allbirds, a calculation of Average Quarterly Availability for such quarter then ended, and an indication of what the Applicable Rate is as a result of such Average Quarterly Availability), 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 the Administrative Agent may reasonably request;
(g) as soon as available but in : Trigger Date/Event Reporting Requirement no Credit Exposure is outstanding, a Reporting Frequency Change Period does not exist, and neither the Borrower Representative nor any event Borrower has requested any Revolving Loan or issuance of any Letter of Credit within 30 days of the end of each fiscal quarter, as of the period then ended any Credit Exposure is outstanding and a Reporting Frequency Change Period does not exists within 30 days of the end of each fiscal month, as of the period then ended any Credit Exposure is outstanding and a Reporting Frequency Change Period exists on or before the third Business Day of each calendar month and at such other times week, as may be requested by of the calendar week then ended during the existence of any Event of Default promptly upon the request of the Administrative AgentAgent and continuing thereafter as requested
(8) concurrently with delivery of any Borrowing Base Certificate pursuant to clause (g) preceding, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:;
(i9) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by due date (with a report listing, as of any accounts on greater than 60 day terms) and (B) reconciled to the end of the applicable Borrowing Base Certificate delivered as period, by account debtor of such date all outstanding Accounts and all payments and collections thereon, and a reconciliation of sales and collections with respect thereto), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and Credit Agreement – Page 95 606004034.3 balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiary’s InventoryDebtor of any Account, in form satisfactory to and, if requested by 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 address 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.;
Appears in 1 contract
Samples: Credit Agreement (Allbirds, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, and in the case of documents and information required to be delivered by the UAE Borrower Agent (and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:agrees to furnish copies thereof to each Lender):
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Xxxxx, Xxxxxx & Xxxxxxxx or other 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 the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants, if any;
(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)Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations, partners’ equity operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearquarter, 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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 cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), such financial statements as presenting fairly in all material respects the financial condition and results of operations of each the 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) forth, in the case of the financial statements delivered under clause (a) onlyor (b), reasonably detailed calculations demonstrating compliance with Section 6.14, (iv) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
, (ev) as soon as availablesetting forth such supplemental information with respect to Schedule 3.15 such that Schedule 3.15, but in any event not more than 30 days prior to the end of each fiscal year of each Borrowertogether with such supplemental information, constitutes a copy of the plan true, complete 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 Agentcorrect listing, as of the period then endeddate of such certificate, a US Borrowing Base Certificateof the items specified in clauses (a) through (c) of Section 3.15, 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 (vi) 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 aggregate outstanding principal amount of Designated Cash Redemption Revolving Loans at 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; period 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.
Appears in 1 contract
Samples: Credit Agreement
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 applicableLender:
(a) within 90 120 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Lender (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 such’ consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 the Company 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 C (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 the Company 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 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) as soon as availableconcurrently with any delivery of financial statements under clause (a) above, but in a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any event not more than 30 days prior Default (which certificate may be limited 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 Agentextent required by accounting rules or guidelines);
(fe) as soon as available but in any event within 30 15 days of the end of each calendar month, and at such other times as may be requested by the Administrative AgentLender, 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 the Lender may reasonably request;
(gf) as soon as available but in any event within 30 15 days of the end of each calendar month and at such other times as may be requested by the Administrative AgentLender, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agentthe Lender:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by due invoice date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Lender, together with a summary specifying the name name, address, 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 InventoryAccounts, 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
(viii) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;
(hg) as soon as available but in any event within 30 15 days of the end of each calendar month (and at such other times as may be requested by the Lender, as of the month then ended), an a schedule and aging of the Borrowers’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar text formatted file acceptable to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing DateLender;
(i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(jh) promptly upon any Administrative Agentthe Lender’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) request 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
(oi) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as any Agent the Lender 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.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 one hundred twenty (120) days after the end of each fiscal year of HoldingsParent Borrower (beginning the Fiscal Year ending December 31, 2024), its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary or exception and without any qualification or exception as to the scope of such audit, other than solely with respect to an upcoming maturity date of Indebtedness) to the effect that such consolidated and consolidating financial statements present fairly in all material respects the financial condition and results of operations of Holdings Parent Borrower 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 sixty (60) 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)Parent Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such 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, all certified by a Financial Officer of the Borrower Representative 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 in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) (i) within thirty (30) days after the end the fiscal months ending July 31, 2024 and August 31, 2024 of each of Flowco, Flogistix and Xxxxx, their respective consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such calendar 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) 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 a Financial Officers Officer of the Borrower Representative or the applicable Borrower as presenting fairly in all material respects the financial condition and results of operations of Holdings such Borrower 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;
, and (cii) within 30 thirty (30) days after the end of each fiscal month (other than for of Parent Borrower, commencing with the thirdfiscal month ending September 30, sixth and ninth month of any fiscal year) (i) of the US Borrower2024, its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows as of the end of and for such fiscal calendar 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., all certified by a Financial Officer of the Borrower Representative 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 in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(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 Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (a) or (b), as presenting fairly in all material respects the financial condition and results of operations of each Parent 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 6.12 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 referred to in Section 3.04 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, available but in any event not more no later than 30 the end of, and no earlier than thirty (30) days prior to the end of of, each fiscal year of each Parent Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Parent Borrower for each month fiscal quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 thirty (30) days of the end of each calendar month, and at such other times as may be necessary to re-determine Availability or 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 therewiththerewith and the Rental Compressor Fleet Component of the Borrowing Base will be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent’s asset valuation experts, (ii) concurrently with the sale or commitment to sell any assets constituting part of the Rental Compressor Fleet Component, and (iii) in the event that the value of such assets is otherwise impaired, as determined by the Administrative Agent, in its Permitted Discretion, together with any additional reports with respect to the US Borrowing BaseBase as the Administrative Agent may reasonably request; provided that during an Enhanced Reporting Period, Canadian Borrowing Basein addition to the foregoing, UAE on the third (3rd) Business Day of each week, Borrower Representative shall deliver a Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base as any Agent may reasonably requestwith respect to the prior week;
(g) as soon as available but in any event within 30 thirty (30) days of the end of each calendar month (and, solely with respect to clause (i) below, weekly during an Enhanced Reporting Period, on the third (3rd) Business Day of each week) 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 the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible Subsidiaryeach other Loan Party’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiaryother Loan Party’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative Borrowers are deemed by the Administrative Agent to be appropriate, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers or any other Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrowers or any other Loan Party and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such datecomplaints and claims made against any Borrower or any other Loan Party);
(iii) a schedule of the Borrowers’ and each other Loan Party’s Compression Units that are available as rental units, in form satisfactory to the Administrative Agent, listing (A) the location of each such Compression Unit, (B) the lessee thereof (if any), (C) the monthly rental rate for such Compression Unit, and (D) such other information with respect thereto and the Administrative Agent may reasonably request;
(iv) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts and Accounts, Eligible Inventory, Eligible Rental Compressor Fleet, Eligible New Rental Compressor Fleet and the Rental Compressor Fleet Component, such worksheets detailing the Accounts and Inventory Compression Units excluded from Eligible Accounts Accounts, Eligible Inventory, Eligible Rental Compressor Fleet, Eligible New Rental Compressor Fleet and Eligible Inventory the Rental Compressor Fleet Component and the reason for such exclusion;
(ivv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts each other Loan Party’s Accounts, Inventory and Inventory Compression Units between (A) the amounts shown in the Borrowers’ and Eligible Subsidiaryeach other Loan Party’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date;
(vvi) a reconciliation of the loan balance per the Borrowers’ and each other Loan Party’s general ledger to the loan balance under this Agreement; and
(vii) a schedule and aging of the Borrowers’ and each other Loan Party’s accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(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 the Administrative Agent’s reasonable request:
(i) copies of invoices in connection with the invoices issued by the Borrowers and each other Loan Party 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 Compression Units purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(iv) copies an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct to the knowledge of the signatory thereof by a Financial Officer; and
(v) concurrently with the annual field examination, a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Borrower’s Loan Party from the appropriate governmental officer in such jurisdiction;
(i) promptly upon request by the Administrative Agent, as of the period then ended, the Borrowers’ and each Eligible Subsidiaryother Loan Party’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.
(kj) as soon as possible and in any event within 30 days of after 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 jurisdictionService;
(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;
(mk) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Ultimate Parent, any Loan Party or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be;
(nl) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (or the Singapore Administrative Agent or the UAE Administrative agent i) any documents described in Sections 101(k)(1)(F) through (K) of ERISA that any Loan Party may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Loan Party may request with respect to any Multiemployer Plan; provided that if such Loan Party has not requested such documents or notices from the administrator or sponsor of the Singapore Borrower applicable Multiemployer Plan, such Loan Party shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve notices from such administrator or sponsor (12unless such Loan Party is limited from making such request under Section 101(k)(3) month period, a summary specifying the name, address of ERISA and balance due for each Account Debtor; andSection 101(l)(3) of ERISA) and shall provide copies of such requested documents and notices promptly after receipt thereof;
(om) promptly following any request therefor, (x) such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; and
(n) promptly following any request therefor, to the extent available, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of any Borrower or any Subsidiary, or any audit of any of them as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Notwithstanding the foregoingEach Borrower represents and warrants that each of it and its Controlling and Controlled entities, upon the occurrence and during the continuance of an Event of Default or during in each case, if 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(collectively with each Borrower, the “Relevant Entities”), either (i) has no SEC registered or unregistered, publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its securities, and, accordingly, solely in the case of this clause (ii), each Borrower hereby (A) authorizes the Administrative AgentAgent to make any such financial statements so filed or made available (collectively or individually, as the context requires, the “Public Financial Statements”), available to Public-Xxxxxx and (B) agrees that at the time such Public Financial Statements are provided hereunder, they shall already have been made available to holders of any such securities. No Borrower will request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Relevant Entities have no outstanding SEC registered or unregistered, publicly traded securities. Notwithstanding anything herein to the contrary, in its sole discretionno event shall a Borrower request that the Administrative Agent make available to Public-Xxxxxx budgets or any certificates, may require reports or calculations with respect to such Borrower’s compliance with the delivery of the reports, certificates and other documents required by Sections 5.01(f), (g), and (h) (covenants contained herein or 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 certificatesBase.
Appears in 1 contract
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:
Lender: (a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 any “Big Four” accounting firm or any other independent public accountants of recognized national standing and reasonably acceptable to the Required Lenders Lender (without a “going concern” or like qualification qualification, commentary or exception 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 is continuing and, if a Default has occurredoccurred and is continuing, 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 6.12 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
; (ed) 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[reserved]; 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.55
Appears in 1 contract
Samples: Credit Agreement (Harmonic Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and Agent (which shall in the case of documents and information required turn furnish to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:each other Lender Party):
(a) within 90 days after the end of each fiscal year of HoldingsFiscal Year, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such yearFiscal Year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous fiscal yearFiscal Year, all reported on by a “Big Four” accounting firm, or other independent public accountants of recognized national standing and that are reasonably acceptable to the Required Lenders Administrative Agent (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 the Company on a consolidated basis in accordance with GAAP consistently appliedbasis, accompanied by any final management letter prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of Holdings (in Fiscal Quarters, 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 Company’s unaudited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 footnotesFiscal Year;
(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 paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative Company, in substantially the form of Exhibit F J, (i) certifying, in the case of the financial statements delivered under clause paragraph (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower and its consolidated Subsidiaries the Company on a consolidated and consolidating basis in accordance with GAAP consistently appliedbasis, subject to normal year-end audit adjustments and the absence of footnotes, ; (ii) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event of 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 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 later of the date of the audited financial statements referred to in Section 3.04 and the date of the prior fiscal year’s audited financial statements certificate delivered pursuant to this paragraph (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) solely to the extent available from the Company’s accounting firm, concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default under Section 6.13 (which certificate may be limited to the extent required by accounting rules or guidelines); provided that the Company agrees to exercise commercially reasonable efforts to obtain such a certificate;
(e) as soon as available, but in any event not more than 30 60 days prior to following the end beginning of each fiscal year of each BorrowerFiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement of cash flow) of each Borrower the Company for each month quarter of the upcoming fiscal year (“Projections”) Fiscal Year, in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 days 10 Business Days of the end of each fiscal month (or, within five Business Days of the end of each calendar monthweek (it being understood that a calendar week ends at midnight on Saturday), and at such other times as may be requested by during any Weekly Reporting Period), a Borrowing Base Certificate which calculates the Administrative Agent, Borrowing Base as of the last day of the fiscal 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 together with supporting information in connection therewith, together with therewith and 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 the Administrative Agent may reasonably request;
(g) as soon as available available, but in any event within 30 days 10 Business Days of the end of each fiscal month (or, in the case of paragraphs (g)(i) and (g)(ii) below, within five Business Days of the end of each calendar month week, during any Weekly Reporting Period) and at such other times as may be reasonably requested by the Administrative Agent, as of the fiscal period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed summary aging of the Borrowers’ each Borrower’s and Eligible SubsidiaryLoan Guarantor’s Accounts (A) including all based on invoices aged by invoice date and the balance due date (with a report of any accounts on greater than 60 day terms) and (Bfor each Account Debtor) 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 DebtorAgent;
(ii) a schedule detailing each Borrowers’ Borrower’s and each Eligible SubsidiaryLoan Guarantor’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (work-in-process and finished goods), by product category type and by value volume on hand, which Inventory shall be valued at the lower of weighted-average cost (standard and/or moving average) 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 Inventory aging by fresh plant and prepared foods in excess of $50,000 total, and LOCOM reports to support reserves; 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’ each Borrower’s and Eligible Subsidiaries’ Loan Guarantor’s Accounts and Inventory between the amounts shown in the Borrowers’ each Borrower’s and Eligible SubsidiaryLoan Guarantor’s general ledger and financial statements and the reports delivered pursuant to clauses paragraph (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ each Borrower’s and Loan Guarantor’s general ledger to the loan balance under this Agreement;
(h) as soon as available available, but in any event within 30 days of 10 Business Days after the end of each calendar month (as fiscal month, during any period that aggregate principal amount of the month then ended)outstanding Term B Loans exceeds $400,000,000, an accounts payable forecast or aging consisting a monthly lender operating report 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 DateCompany that is consistent with past practices;
(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 periodic reports on Form 10-K, Form 10-Q and Form 8-K that are filed by any Loan Party the Company or any Subsidiary with the Securities and Exchange Commission, SEC 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;
; provided that any documents required to be delivered pursuant to paragraphs (na) promptly upon and (b) and this paragraph (i) shall be deemed to have been delivered on the request of date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address referenced in Section 9.01(b); or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any to which each Lender Party has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); and provided, further, that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent (or of the Singapore posting of any such documents and provide to the Administrative Agent or the UAE Administrative agent with respect to Account Debtors by electronic mail electronic versions (i.e., soft copies) 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 Debtorsuch documents; and
(oj) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent other Lender Party 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.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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. Notwithstanding the foregoing, in the event that the US Borrower delivers an annual report on Form 10-K of Holdings for such fiscal year the Borrowers will be deemed to have delivered the financial statements required by this Section 5.01(a) on the date of such filing;
(b) within 45 55 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)Holdings, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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. Notwithstanding the foregoing, in the event that the US Borrower delivers a quarterly report on Form 10-Q of Holdings for such fiscal quarter, the Borrowers will be deemed to have delivered the financial statements required by this Section 5.01(b) on the date of such filing;
(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 BorrowerHoldings, its consolidated balance sheet and related consolidated sheet, statements of operations cash flows and a schedule of distributions and Capital Expenditures income statement 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 G (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 Holdings 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 (if applicable) with Section 6.13 6.15 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 referred to in Section 3.04 that would affect the financial statements accompanying such change has occurred, certificate and specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 60 days prior to after the end of each fiscal year of each BorrowerHoldings, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower Holdings for each month quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar monthmonth (and, during any Restriction Period, each calendar week), and at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, a US an Aggregate Borrowing Base Certificate, together with a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK for each Borrower which calculates such Borrower’s Borrowing Base CertificateBase, 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 of any Borrower as any the Administrative Agent may reasonably request; and the PP&E Component of the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent’s asset valuation experts, (ii) concurrent with the sale of or entry into a binding commitment to sell (other than to another Loan Party) any assets constituting part of the PP&E Component, or (iii) in the event any material assets are idled for any reason other than routine maintenance or repairs for a period in excess of ten (10) consecutive days;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month (and, during any Restriction Period, each calendar week) and at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file manner reasonably acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts of each Loan Party (Aother than Holdings) (1) including lists of all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate of each Borrower delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and balance due for each Account Debtor;
(ii) a schedule detailing the Inventory of each Borrowers’ and each Eligible Subsidiary’s InventoryLoan Party (other than Holdings), in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by each Loan Party (other than Holdings) since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by each Loan Party (other than Holdings) and complaints and claims made against the Borrowers), and (C3) reconciled to the applicable Borrowing Base Certificate of each Borrower delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers each Loan Party (other than Holdings) 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 of each Loan Party (other than Holdings) 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’ each Borrower’s general ledger to the loan balance balances under this Agreement;
(hi) as soon as available but in any event within 30 20 days of the end of each calendar month (and at such other times as may be reasonably requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrowers’ and the other Loan Parties’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered in a form substantially similar to the form of accounts payable forecast provided manner reasonably acceptable 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 endedAgent;
(j) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers any Loan Party 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivk) copies as soon as available but in any event within 20 days of the end of each Borrower’s calendar month (and during any Restriction Period, each Eligible Subsidiarycalendar week) and at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, each Loan Party’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 20 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 number, delivered in a manner reasonably acceptable to the Administrative Agent, and shall be certified as true and correct in all material respects by a Financial Officer of the applicable BorrowerBorrower Representative;
(m) within 20 days of the first Business Day of each March, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization (to the extent available in such jurisdiction);
(n) no later than 5 Business Days prior to the effectiveness thereof, copies of substantially final drafts of any proposed amendment, waiver or other modification other than a supplement to add additional guarantors with respect to the Senior Notes or the Second Lien Registration Rights Agreement;
(o) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, any Loan Party Borrower 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
(op) promptly following any request therefor, such other reasonably available information regarding the operations, business affairs and financial condition of any Loan Party Holdings or any Subsidiary, as the Administrative Agent or compliance with the terms of this Agreement, as any Agent Lender 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.
Appears in 1 contract
Samples: Credit Agreement (Libbey Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Company 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 applicableeach Lender:
(a) as soon as available, but in any event within 90 75 days after the end of each fiscal year of Holdingsthe Company (or such lesser number of days within which the Company shall be required to file its Annual Report on Form 10-K for such fiscal year with the SEC), its the audited consolidated balance sheet and related statements of operationsincome, partnersshareholders’ equity and cash flows of the Company and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) as soon as available, but in any event 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 thereafterthe Company (or such lesser number of days within which the Company shall be required to file its Quarterly Report on Form 10-Q for such fiscal quarter with the SEC), 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 operationsincome, partnersshareholders’ equity and cash flows of the Company and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 time specified 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) aboveof this Section, (I) 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 pursuant to clause (b)) above, (i) as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-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, thereto and (iii) setting forth reasonably detailed calculations (A) demonstrating compliance with (x) the last sentence of Section 6.13 6.10 and (ivy) in Section 6.11 (to the case extent applicable) and (B) of financial statements delivered under clause the Leverage Ratio and (aII) only, stating whether if there shall have been any material change in GAAP or in the application thereof has occurred that applies to the Company or any Subsidiary since the date of the prior fiscal year’s audited financial statements and, if any referred to in Section 3.04(a) (unless such change has occurredshall theretofore have been notified under this subclause (II)), a notification from a Financial Officer as to such change, specifying the effect of such change on the financial statements accompanying such certificatenotification;
(d) concurrently with any delivery of financial statements under clause (a) of this Section, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default with respect to Section 6.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, but in any event not more than 30 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month fiscal quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available available, but in any event within 30 days 15 Business Days of the end of each calendar monthmonth (or (1) when such calendar month is the final full month of any fiscal quarter, and at such other times as may be requested by the Administrative Agent, as within 15 Business Days of the period then endedend of such fiscal quarter, or (2) within three Business Days of the end of each week at any time that Availability is less than the greater of (x) 20% of the Total Commitments and (y) $60,000,000), a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK which calculates the Borrowing Base CertificateBase, 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 the Administrative Agent may reasonably request; and, after the Equipment Election Effective Date, the Equipment Component of the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent’s asset valuation experts, or (ii) in the event that the aggregate value of such assets is otherwise impaired to the extent that the Net Orderly Liquidation Value of the equipment included in the Collateral would reasonably be expected to be less than 150 % of the Equipment Component, as determined in the Administrative Agent’s Permitted Discretion;
(g) as soon as available but in any event within 30 days 15 Business Days of the end of each calendar month (or (1) when such calendar month is the final full month of any fiscal quarter, within 15 Business Days of the end of such fiscal quarter, or (2) within three Business Days of the end of each week at any time that Availability is less than the greater of (x) 20% of the Total Commitments and (y) $60,000,000) 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 AgreementSupplemental Documentation;
(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;
promptly (i) within 30 days of after 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 periodic and other certifications of the chief executive officer and chief financial officer of the Company, registration statements and other publicly available materials filed by any Loan Party the Company or any Subsidiary of its Subsidiaries with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchangeexchange (other than any exhibits to any of the foregoing which are too voluminous to furnish and which are made available by the Company or any of its Subsidiaries on such Person’s website and any registration statement on Form S-8 or its equivalent) and (ii) after the distribution thereof, or copies of all financial statements, reports, proxy statements and other materials distributed by the Company to its shareholders generally;
(i) promptly after Xxxxx’x or S&P shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(j) promptly following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that any Loan Party or its Subsidiaries any ERISA Affiliate may request with respect to its public shareholders generallyany Multiemployer Plan; provided, as that if the case may be;
(n) promptly Loan Parties or any of the ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon the reasonable request of the Administrative Agent (Agent, the Loan Parties and/or the ERISA Affiliates shall promptly make a request for such documents or the Singapore Administrative Agent notices from such administrator or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower sponsor and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address Borrowers shall provide copies of such documents and balance due for each Account Debtornotices promptly after receipt thereof; and
(ok) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Company or any Subsidiaryof its Subsidiaries, or compliance with the terms of this AgreementAgreement and the other Loan Documents, as the Administrative Agent or any Agent Lender 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 Financial statements and other documents required by Sections 5.01(fto be delivered pursuant to clause (a), (gb), (d) or (h) of this Section (to the extent any such financial statements or other documents are included in reports or other materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which (i) the Company posts such financial statements or other documents, or provides a link thereto, on the Company’s website on the Internet or (ii) such financial statements or other documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver paper copies of such financial statements and other documents to the Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, as the case may be, and (hii) (with respect the Company shall notify the Administrative Agent of the posting of any such financial statements and other documents and provide to the US BorrowersAdministrative Agent electronic versions (i.e., UK Borrower or Canadian Borrowersoft copies) 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 certificatesthereof.
Appears in 1 contract
Samples: Credit Agreement (Brunswick Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers Holdings and the Parent Borrower 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 applicableeach Lender:
(a) within 90 95 days after the end of each fiscal year of Holdingsthe Parent Borrower, its the audited consolidated balance sheet and related statements of operationsincome, partnersstockholders’ equity and cash flows for the Parent Borrower and its consolidated subsidiaries 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 Xxxxx Xxxxxx and Company LLC or other 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 the Parent Borrower and its consolidated Subsidiaries 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)the Parent Borrower, 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 unaudited consolidated and consolidating balance sheet and related statements of operationsincome, partnersstockholders’ equity and cash flows for each of the Parent Borrower and its consolidated subsidiaries, on the one hand, and the Canadian Subsidiary Borrower and its consolidated subsidiaries, on the other hand, in each case 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Parent Borrower and its consolidated Subsidiaries subsidiaries or the Canadian Subsidiary Borrower and its consolidated subsidiaries, as the case may be, on a consolidated basis in accordance with GAAP (or, in the case of the financial statements of the Canadian Subsidiary Borrower and its consolidated subsidiaries, Canadian 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 first two fiscal months of each fiscal quarter of the Parent Borrower, its the unaudited consolidated balance sheet and related consolidated statements of operations income, stockholders’ equity and a schedule cash flows for each of distributions the Parent Borrower and Capital Expenditures its consolidated subsidiaries, on the one hand, and the Canadian Subsidiary Borrower and its consolidated subsidiaries, on the other hand, in each case 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., all certified by a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of the Parent Borrower and its consolidated subsidiaries or the Canadian Subsidiary Borrower and its consolidated subsidiaries;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with of the Fixed Charge Coverage Ratio as of the last day of the last fiscal period covered by such financial statements (but only in the event the Fixed Charge Coverage Ratio is then being tested pursuant to Section 6.13 6.12) and (iviii) 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 referred to in Section 3.04 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 after the end of each fiscal year of each the Parent Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Parent Borrower and the Subsidiaries on a consolidated basis for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Administrative Agent and, promptly when available, any significant revisions of such Projections;
(f) as soon as available but in any event within 30 days of 10 Business Days following the end of each calendar month, and at such other times as may be required pursuant to Section 2.22 or 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 each Borrowing Base as any the Administrative Agent may reasonably request;
(g, provided that the Parent Borrower may, at its election and upon notice to the Administrative Agent, deliver the Borrowing Base Certificate required by this Section 5.01(f) as soon as available but in any event within 30 days of on or before the first Friday following the end of each calendar month and at week; provided further that, following such other times as may be requested by election, the Administrative Agent, as of Parent Borrower shall deliver 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 on or before 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 first Friday following the end of each calendar month week until the date that is (as i) in the case of the month then ended)first of such elections, an accounts payable forecast 45 days, or aging consisting (ii) in the case of a break down of accounts by due any other subsequent such election, 180 days, after the date in a form substantially similar on which the first Borrowing Base Certificate delivered pursuant to the form of accounts payable forecast provided such election is delivered to the Administrative Agent on or prior to the Closing DateAgent;
(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;
(mg) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Holdings, the Parent Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Holdings to its public shareholders generally, as the case may be;
(nh) promptly upon the following any written request of therefor from the Administrative Agent (on its own behalf or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors on behalf of the Singapore Borrower and the Dubai Borrowerany Lender), 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 Holdings, the Parent Borrower or any Subsidiary, or compliance with the terms of this Agreement, as any the Administrative Agent (on its own behalf or on behalf of such Lender) may reasonably request. Notwithstanding request (including any information required to be provided by the foregoing, upon Parent Borrower and the occurrence and during Canadian Subsidiary Borrower pursuant to Section 9.14); and
(i) promptly after 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, request by the Administrative AgentAgent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Parent Borrower or any of its sole discretion, ERISA Affiliates may require the delivery of the reports, certificates and other documents required by Sections 5.01(f), (g), and (h) (request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the US Borrowers, UK Parent Borrower or Canadian Borrower) more frequently than monthlyany of its ERISA Affiliates may request with respect to any Multiemployer Plan, including weekly provided that if the Parent Borrower or daily, in which event, in any of its ERISA Affiliates has not requested such documents or notices from the case administrator or sponsor of Borrowing Base Certificatesthe applicable Multiemployer Plan, the Parent Borrower or the applicable Borrowing Base would be adjusted immediately upon receipt ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such certificatesdocuments and notices promptly after receipt thereof.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated and unaudited consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows (or financial statements of Holdings and its consolidated subsidiaries, in lieu of such audited financial statements of the Company, together with a detailed reconciliation, reflecting such financial information for the Company and its Restricted Subsidiaries, on the one hand, and Holdings and any Unrestricted Subsidiaries, on the other hand) 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 Ernst and Young LLP or other 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 the Company and its consolidated Restricted Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows (or financial statements of Holdings and its consolidated subsidiaries, in lieu of such financial statements of the Company, together with a detailed reconciliation, reflecting such financial information for the Company and its Restricted Subsidiaries, on the one hand, and Holdings and any Unrestricted Subsidiaries, on the other hand) 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 the Company and its consolidated Restricted 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 45 days after the end of the first two fiscal months of each fiscal month (other than for the third, sixth and ninth month of any fiscal year) (i) quarter of the US BorrowerCompany during a Level 2 Minimum Availability Period, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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 , all certified by one of financial statements under clause (a) or (b) above, a certificate of a its 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), Officers as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company and its consolidated Restricted 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;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a Compliance Certificate of a Financial Officer of the Company in substantially the form of Exhibit D (iii) 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, (iiiii) setting forth certifying in the case of the financial statements delivered under paragraph (a) or (b), a reasonably detailed calculations calculation of the Fixed Charge Coverage Ratio and, during any Trigger Period, demonstrating compliance with Section 6.13 6.12 and (iviii) in the case of financial statements delivered under clause (a) only, stating whether any material change in GAAP or in the application thereof used preparation of such financial statements has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (a) above, to the extent a Trigger Period existed in such period, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 within 90 days prior to after the end beginning of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) (i) as soon as available available, but in any event within 30 fifteen (15) days of the end of each calendar monthmonth (or, within three (3) Business Days of the end of each calendar week (it being understood that a calendar week ends on Sunday), during any Weekly Reporting Period), each Borrowing Base Certificate which calculates the applicable Borrowing Base as of the last day of the fiscal period then ended, together with supporting information in connection therewith and any additional reports with respect to any Borrowing Base as the Administrative Agent may reasonably request; and (ii) prior to the Discharge of Existing Term Loan Obligations, the Tranche A Borrowing Base Certificate, in accordance with Section 5.01(g) of the Existing ABL Credit Agreement (regardless of whether or not the Tranche A Commitment has been terminated);
(h) as soon as available, but in any event within fifteen (15) days of the end of each fiscal month (or, in the case of clauses (h)(i)(B) and (h)(ii) below within three Business Days of the end of each calendar week, during any Weekly Reporting Period) and at such other times as may be reasonably 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 fiscal period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:
(i) (A) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by due invoices’ invoice date (with a report of any accounts on greater than 60 day and payment terms) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent together with Agent, and (B) a summary aging of the Loan Parties’ Accounts specifying the name name, address and balance due for each Account Debtor;.
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative AgentAgent (which shall be in a short-form format that is reasonably satisfactory to the Administrative Agent if delivered during a Weekly Reporting Period), (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type and by value volume on hand, which Inventory shall be valued at the lower of weighted-average cost (determined in accordance with the historical practices of the Loan Parties prior to the Effective Date) 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, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Loan Parties since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Loan Parties and complaints and claims made against the Loan Parties), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Loan Parties to determine Eligible Accounts Accounts, the Borrowing Base Cash Component, Eligible Equipment, Eligible Real Estate, Eligible Capital Expenditures and Eligible Inventory, such worksheets detailing the Accounts Accounts, Equipment, Real Estate and Inventory excluded from Eligible Accounts Equipment, Eligible Real Estate, Eligible Capital Expenditures and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Accounts Accounts, Equipment and Inventory between the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses paragraphs (i) and (ii) above; and;
(v) a reconciliation of the loan balance per the BorrowersLoan Parties’ general ledger to the loan balance under this Agreement; and
(vi) a summary of all Swap Agreements entered into or modified since the Effective Date that have not been previously disclosed to the Administrative Agent;
(hi) as soon as available available, but in any event within 30 15 days of the end of each calendar fiscal month (as of the month then ended)or, 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 three Business Days of the end of each calendar monthweek, a report listing all outstanding Swap Obligations during any Weekly Reporting Period) and at such other times as may be reasonably requested by the Administrative Agent, as of the month fiscal period then ended, a schedule and aging of the Loan Parties’ accounts payable, delivered electronically in a formatted file acceptable to the Administrative Agent;
(j) promptly upon any the Administrative Agent’s reasonable 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 SubsidiariesLoan Party, 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 (to the knowledge of such Financial Officer after due inquiry) of the Borrower Representative, (ii) copies of all tax returns filed by any Loan Party with the IRS, Canada Revenue Service or any applicable BorrowerGovernmental Authority in respect of any French Loan Party or U.K. Loan Party and (iii) copies of bills of lading for in-transit inventory;
(mk) promptly upon the Administrative Agent’s request (but, in any event not more than once each calendar year), a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation or organization;
(l) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials registration statements filed by any Loan Party the Company or any Restricted Subsidiary with the U.S. Securities and Exchange Commission, the Ontario Securities Commission or any Governmental Authority succeeding to any or all of the functions of said CommissionCommissions, or with any national or provincial securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be;
; provided that any documents required to be delivered pursuant to this paragraph (nl) promptly upon shall be deemed to have been delivered on the request of date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address referenced in Section 9.01(b); or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Singapore Administrative Agent); provided further that (x) upon written request by the Administrative Agent, the Company shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (y) the Company shall notify (which may be by facsimile or electronic mail) the UAE Administrative agent with respect to Account Debtors Agent of the Singapore Borrower posting of any such documents and provide to the Dubai Borrower)Administrative Agent by electronic mail electronic versions (i.e., but not more than two times in any twelve (12soft copies) month period, a summary specifying the name, address and balance due for each Account Debtorof such documents; and
(om) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any SubsidiaryRestricted Subsidiaries, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent may reasonably request. Notwithstanding the foregoingLender, 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, acting through 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 certificatesreasonably request.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, and in the case of documents and information required Agent (with copies to be delivered provided to each Lender 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or another registered public accountants accounting firm 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter required auditors’ communications to the Audit Committee related to significant deficiencies and material weaknesses 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 Company’s 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)year, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 footnotesadjustments;
(c) within 30 days (or, with respect to the twelfth fiscal month of each fiscal year, within 60 days) after the end of each fiscal month of the Company (other than for the third, sixth and ninth fiscal month of any each fiscal year) (i) of the US Borrower), its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 footnotesadjustments, (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 6.16 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, an auditor’s report of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default (which report may be limited to the extent required or advised by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 15 days prior to the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent and including forecasts of Aggregate Availability) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available available, but in any event within 20 days (or, in the case of the last fiscal month of each fiscal year, 30 days days) of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as fiscal month (or within three Business Days of the period then endedend of each week at any time during a Full Cash Dominion Period), an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, and a UAE Borrowing Certificate, a Singapore UK Borrowing Base Certificate and a UK European Borrowing Base Certificate, in each case which calculates such Borrowing Base, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, the Canadian Borrowing Base, UAE or the UK Borrowing Base or the European Borrowing Base of a Borrower as the Administrative Agent or any Collateral Agent may reasonably request; provided that no Canadian Borrowing Base Certificate, Singapore or UK Borrowing Base Certificate or UK European Borrowing Base Certificate or additional reports with respect thereto shall be required if the European Sublimit, UK Sublimit or Canadian Sublimit, as any Agent may reasonably requestapplicable, shall have been terminated;
(gh) as soon as available but in any event within 20 days (or, in the case of the last fiscal month of each fiscal year, 30 days days) of the end of each calendar fiscal month (or within three Business Days of the end of each week at any time during a Full Cash Dominion Period) and at such other times as may be reasonably requested by the Administrative Agent or any Collateral 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 Subsidiaryeach Loan Party’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative Loan Parties are deemed by the Administrative Agent to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Loan Parties since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by any Loan Party and complaints and claims made against any Loan Party), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Loan Parties 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 SubsidiariesLoan Parties’ Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible Subsidiaryapplicable Loan Party’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 BorrowersLoan Parties’ general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 20 days (or, in the case of the last fiscal month of each fiscal year, 30 days days) of the end of each calendar fiscal month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Loan Parties’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(ij) within 30 45 days of each March 31 and September 30, in the case of the US Loan Parties and Canadian Loan Parties, or within 15 days of the end of each calendar month, a report listing all outstanding Swap Obligations as in the case of the month then endedEuropeanUK Loan Parties, (or upon the reasonable request of the Administrative Agent), an updated customer list for each Loan Party, which list shall state the customer’s name, mailing address and phone number (to the extent available) and shall be certified as true and correct by a Financial Officer of the Borrower Representative;
(jk) promptly upon any the Administrative Agent’s reasonable request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties 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 or Equipment purchased by any Loan Party;; and
(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.
(kl) as soon as possible and in any event within 30 days of filing thereof, copies of all U.S. federal income tax returns (including all related schedules) filed by any Loan Party with the U.S. Internal Revenue Service Service; provided that for taxable years during which the Company or any Loan Party did not incur any loss and for which the relevant Company or any Loan Party is not utilizing any net operating loss carrybacks or forwards, the Company is required to provide only copies of page one through four and material related schedules of U.S. federal income tax authority of any foreign jurisdiction;
(l) within 30 days of each March 31 and September 30, an updated customer list returns filed 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 Borrowersuch taxable years;
(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 the Company or any Subsidiary with the U.S. 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 the Company to its public shareholders generally, as the case may be;
; provided that any documents required to be delivered pursuant to this clause (nm) promptly upon shall be deemed to have been delivered on the request of date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed in Section 9.01; or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Singapore Administrative Agent); provided further that: (x) upon written request by the Administrative Agent, the Company shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (y) the Company shall notify (which may be by facsimile or electronic mail) the UAE Administrative agent with respect to Account Debtors Agent of the Singapore Borrower posting of any such documents and provide to the Dubai Borrower)Administrative Agent by electronic mail electronic versions (i.e., but not more than two times in any twelve (12soft copies) month period, a summary specifying the name, address and balance due for each Account Debtorof such documents; and
(on) 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, any Collateral Agent or any Lender (through the Administrative Agent) 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 certificatesreasonably request.
Appears in 1 contract
Samples: Credit Agreement (Claiborne Liz Inc)
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 the Company 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 the Company 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 of the thirdCompany, sixth and ninth month of any fiscal year) (i) of the US Borrower, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company 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, and (ii) a detailed listing of all intercompany loans made by the Borrowers during such calendar month;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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) concurrently with any delivery of financial statements under clause (a) or (b), 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 days prior to the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 15 days of the end of each calendar monthmonth (provided, however, in the event Borrower’s Availability minus the Availability Block is less then $5,500,000 such reporting shall be delivered within 3 days of the end of each calendar week), and at such other times as may be necessary to re-determine availability of Advances hereunder or 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 the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 15 days of the end of each calendar month (provided, however, in the event Borrower’s Availability minus the Availability Block is less then $5,500,000 such reporting shall be delivered within 3 days of the end of each calendar week), 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 the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and complaints and claims made against the Borrowers), and (C3) 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;
(hi) as soon as available but in any event within 30 15 days of the end of each calendar month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrowers’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(ij) 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 end of each calendar monthcustomer’s name, mailing address and phone number and shall be certified as true and correct by a report listing all outstanding Swap Obligations as Financial Officer of the month then endedBorrower Representative, delivered electronically in a text formatted file acceptable to the Administrative Agent;
(jk) promptly upon any the 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivl) copies as soon as available but in any event within 3 days of the end of each Borrower’s calendar week and each Eligible Subsidiary’s at such other times as may be requested by the Administrative Agent, as of the period then ended, the Borrowers’ 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.
(km) 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 jurisdictionService;
(ln) Reserved;
(o) concurrently with any delivery of financial statements under clause (c) above, a detailed listing of all advances of proceeds of Loans requested by the Borrower Representative for each Borrower during the immediately preceding calendar month during such calendar month;
(p) within 30 days of the first Business Day of each (i) March 31 and September 30September, an updated customer list a certificate of good standing for each Borrower and (ii) March, a certificate of good standing for each Loan Guarantor, in each case from the appropriate governmental officer in its Subsidiariesjurisdiction of incorporation, which list shall state the customer’s nameformation, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borroweror organization;
(mq) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Borrower 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 Borrower 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
(or) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender 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.
Appears in 1 contract
Samples: Credit Agreement (Metalico Inc)
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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year Fiscal Year of Holdingsthe Company, its audited consolidated and unaudited consolidating balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal Year, all such consolidated statements to be reported on by independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification qualification, commentary 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, with such consolidating statements to be certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidating basis when considered in relation to the consolidated financial statements of the Company and its Subsidiaries, and accompanied by any management letter prepared by said accountants; provided to the extent all such documents are included in the annual report for the Company and its Subsidiaries on Form 10-K filed with the SEC, the requirements of this clause (a) shall be deemed to have been satisfied if the Administrative Agent has been furnished with such annual report in the time period specified above in this clause (a);
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters Fiscal Quarters of Holdings (in the case each Fiscal Year 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearsuch 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)Fiscal Year, all certified by one a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated and a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided to the extent all such documents are included in the quarterly report for the Company and its Subsidiaries on Form 10-Q filed with the SEC, the requirements of this clause (b) shall be deemed to have been satisfied if the Administrative Agent has been furnished with such quarterly report in the time period specified above in this clause (b);
(c) if Aggregate Credit Exposure at any time during the immediately preceding twelve-month period exceeded 25% of the then Maximum Credit Amount, within 30 thirty (30) days after the end of each fiscal month Fiscal Month of the Company (other than for the thirdJanuary, sixth March, June, September and ninth month of any fiscal year) (i) of the US BorrowerDecember), its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows as of the end of and for such fiscal month Fiscal Month and the then elapsed portion of the fiscal yearFiscal 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 Fiscal Year, all certified by a Financial Officer of the UK BorrowerCompany as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, the UAE Borrower subject to normal year-end audit adjustments and the Singapore Borrower on an individual (non-consolidated) basis for each such Person, its balance sheet and related statements absence 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.footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, (x) in the case of the financial statements delivered under clause (a), as fairly presenting in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidating basis when considered in relation to the consolidated financial statements of the Company and its Subsidiaries, (y) 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 the Company and its 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 and (z) in the case of the financial statements delivered under clause (c), as presenting fairly in all material respects the financial condition and results of operations of the Company 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 (whether or not a Financial Covenant Period then exists), (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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate and (v) stating whether, since the later of the Effective Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed its type of entity, (D) change its organization identification number, if any, issued by its state or province of incorporation or other organization, or (E) changed its state or province of incorporation or organization;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any failure by the Company to comply with Section 6.13 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, available but in any event not more no later than 30 sixty (60) days prior to after the end of, each Fiscal Year of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower the Company for each month of the upcoming fiscal year Fiscal Year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 days of the end of on or before each calendar monthBorrowing Base Reporting Date, and at such other times as may be reasonably requested by the Administrative Agent, a Borrowing Base Certificate setting forth a calculation of the Aggregate Borrowing Base, the U.S. Borrowing Base and the Canadian Borrowing Base as of the period then endedmost recently ended Fiscal Quarter, a US Fiscal Month or calendar week, as applicable, to which such Borrowing Base CertificateReporting Date relates, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK Borrowing Base Certificate, and together with supporting information in connection therewiththerewith (including, in respect of any Borrowing Base Certificate delivered as of the end of any Fiscal Quarter of the Company, a calculation of Average 4Q Availability for the four Fiscal Quarter period then ended and an indication of what the Applicable Rate is as a result of such Average 4Q Availability), 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 the Administrative Agent may reasonably request; and, without limiting any of the rights that the Administrative Agent may otherwise have under this Agreement and the other Loan Documents, the U.S. Fixed Asset Component (if any) and the Canadian Fixed Asset Component (if any) reflected in the Aggregate Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent’s asset valuation experts, (ii) concurrently with the sale or commitment to sell any assets constituting part of the U.S. Fixed Asset Component (if any) and the Canadian Fixed Asset Component (if any), (iii) in the event such assets are idled for any reason other than routine maintenance or repairs for a period in excess of ten (10) consecutive days, and (iv) in the event that the value of such assets is otherwise impaired, as determined by the Administrative Agent’s in its Permitted Discretion;
(gh) as soon as available but on or before each Borrowing Base Reporting Date (in any event the case of clauses (i), (ii) and (iii) below) or within 30 twenty (20) days after each Borrowing Base Reporting Date (in the case of the end of each calendar month clauses (iv) and (v) and at such other times as may be reasonably requested by the Administrative Agent, as of the most recently ended Fiscal Quarter, Fiscal Month or calendar week (such other period reasonably specified by the Administrative Agent), as applicable, then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 appropriateappropriate in its Permitted Discretion, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(iii) a worksheet of calculations prepared by the Borrowers to determine determine, in each case to the extent applicable, Eligible Accounts Canadian Accounts, Eligible U.S. Accounts, Eligible Canadian Equipment, Eligible U.S. Equipment, Eligible Canadian Inventory, Eligible U.S. Inventory, and Eligible InventoryReal Property, with such worksheets detailing the Accounts and Inventory such Collateral that is excluded from Eligible Accounts and Eligible Inventory the determination of the Aggregate Borrowing Base, the U.S. Borrowing Base and the reason for such exclusionCanadian Borrowing Base;
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between (A) 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; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(v) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;; and
(hvi) such other information 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 may from time to the Closing Datetime reasonably request;
(i) within 30 days of promptly upon the end of each calendar monthAdministrative Agent’s request, a report listing all outstanding Swap Obligations as of the month then most recently ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file acceptable to the Administrative Agent;
(j) promptly upon any the Administrative Agent’s request, an updated customer list for each Borrower and its Subsidiaries, prepared in a manner reasonably acceptable to the Administrative Agent, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the Borrower Representative;
(k) promptly upon the 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 or Equipment purchased by any Loan Party;; and
(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 thirty (30) days of the first Business Day of each March 31 and September 30September, an updated customer list a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Borrower and its Subsidiaries, which list shall state Loan Party from the customer’s name, mailing address and phone number and shall be certified as true and correct appropriate governmental officer in all material respects by a Financial Officer of the applicable Borrowersuch jurisdiction;
(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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC or any Canadian provincial securities 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 after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtor; andshall provide copies of such documents and notices promptly after receipt thereof;
(o) promptly following the end of each Fiscal Quarter, a report of all Asbestos Claims commenced or disposed of during such Fiscal Quarter;
(p) promptly following any request therefor, such other information regarding as the operations, business affairs and financial condition of any Loan Party Administrative Agent or any Subsidiary, or compliance with the terms of this Agreement, as any Agent Lender may reasonably request. Notwithstanding the foregoing; and
(q) immediate notice of, upon the occurrence with copies of any such documentation 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 $10,000,000notices, the Administrative Agent, in its sole discretion, may require the delivery of the reports, certificates and other documents required by Sections 5.01(f)as applicable with respect to, (g)i) any default in, or breach under, a Canadian Pension Plan; (ii) any action or inaction of a plan sponsor or administrator that could lead to a Termination Event; (iii) receipt of any notice from, or any action of, FSCO, OSFI, or other Governmental Authority that that could lead to a Termination Event; (iv) copies of all actuarial valuations conducted for all Canadian Defined Benefit Plans; and (hv) (with respect to the US Borrowers, UK Borrower or existence of any Unfunded Current Liability in any 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 certificatesDefined Benefit Plans.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of HoldingsHxxxxx Parent, its audited consolidated and unaudited consolidating balance sheet and related statements of operations, partners’ stockholders' 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 such consolidated financial statements reported on by independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “"going concern” " or like qualification qualification, commentary or exception and without any qualification or exception as to the scope of such audit, other than a "going concern" or like qualification or exception resulting solely from maturity of the Revolving Commitments occurring within one year from the date such opinion is delivered) to the effect that such consolidated and consolidating financial statements present fairly in all material respects the financial condition and results of operations of Holdings Hxxxxx Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) [reserved].
(c) within 45 thirty (30) days after the end of each fiscal month of Hxxxxx Parent, or 45 days with respect to the first three last fiscal quarters month 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 (beginning with the fiscal quarter ended June month ending September 30, 2007 (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period2020), its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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., all certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Hxxxxx Parent 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower Hxxxxx Parent 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, available but in any event not more no later than 30 thirty (30) days prior to after the end of each fiscal year of each BorrowerHxxxxx Parent, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower Hxxxxx Parent for each month of the upcoming fiscal year (“the "Projections”") in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar monthmonth (and during an Increased Reporting Period, on the third Business Day of each calendar week, with respect to the prior week), and at such other times as may be necessary to re-determine Availability or 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 the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month (and during an Increased Reporting Period, on the third Business Day of each calendar week, with respect to the prior week) and at such other times as may be requested by the Administrative Agent, in each case, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) ' Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s ' Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such date;Borrowers); and
(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.
(i) as soon as available but in any event within 20 days of the end of each calendar month and at such other times as may be requested by the Administrative Agent, as of the month then ended, a schedule and aging of the Borrowers' accounts payable, delivered electronically in a text formatted file acceptable to the Administrative Agent;
(ivj) [reserved];
(k) promptly upon the Administrative Agent's request in the Administrative Agent's Permitted Discretion:
(i) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ ' Accounts and Inventory between (A) 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) aboveof clause (h) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) of clause (h) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date; and
(vii) 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:
(iiii) 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;
(iiiv) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory or Equipment purchased by any Loan Party;
(iiiv) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivvi) copies an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer's name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of each Borrower’s and each Eligible Subsidiary’s the Borrower Representative;
(vii) the Borrowers' sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal;
(viii) copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service; and
(vix) a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction.
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) promptly upon request therefor by the Administrative Agent in the Administrative Agent's Permitted Discretion, 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;
(mp) promptly after upon request therefor by the same become publicly availableAdministrative Agent, 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be;
(nq) promptly upon the after any request of therefor by the Administrative Agent in the Administrative Agent's Permitted Discretion or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtor; andshall provide copies of such documents and notices promptly after receipt thereof;
(or) promptly following any request therefortherefor by the Administrative Agent in the Administrative Agent's Permitted Discretion, (i) such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(s) promptly after receipt thereof by any Borrower or any Subsidiary, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by the SEC or such other agency regarding financial or other operational results of any Borrower or any Subsidiary thereof; and
(t) promptly following any request therefor by the Administrative Agent in the Administrative Agent's Permitted Discretion, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of such Borrower or any Subsidiary, or any audit of any of them as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Notwithstanding Documents required to be delivered pursuant to Section 5.01(a), (b) or (p) (to the foregoingextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, upon if so delivered, shall be deemed to have been delivered on the occurrence date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and during Retrieval system (EXXXX); or (ii) on which such documents are posted on a Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the continuance of an Event of Default Administrative Agent have access (whether a commercial, third-party website 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, whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, in its sole discretionthe Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by fax or through Electronic Systems) of the posting of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., may require soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by any Borrower with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocuments to it and maintaining its copies of such documents.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 120 days after the end of each fiscal year of HoldingsHF Foods, its audited consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 qualification, commentary 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 HF Foods 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 forty-five (45) days after the end of each of the first three fiscal quarters of Holdings HF Foods (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 including the fiscal quarter ended June ending September 30, 2007 (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period2019), its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 provided, however, that such comparison with respect to statements of members' equity and cash flows shall not be required to be delivered with respect to any fiscal quarter of HF Foods ending prior to the financial statements first anniversary of Edgen/Murray L.P. and its comparable subsidiary until the 2008 fiscal yearEffective Date), all certified by one of the a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings HF Foods and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments (it being agreed and understood that any such financial statements delivered with respect to the absence fiscal quarter ending September 30, 2019 shall be on a consolidated basis inclusive of footnotesthe B&R Group);
(c) within 30 thirty (30) days after the end of each fiscal month (of HF Foods, other than for the third, sixth and ninth last month of any a fiscal year) (i) of the US Borrowerquarter, 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 unconsolidated balance sheet and related statements of operations and a schedule of distributions and Capital Expendituresoperations, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year;
(d) within 120 days after the end of each fiscal year of B&R Realty, its unaudited consolidated and consolidating balance sheet and related statements of operations, members' 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 corresponding period previous fiscal year, all certified by a Financial Officer of B&R Realty as presenting fairly in all material respects the financial condition and results of operations of B&R Realty and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(ore) within 45 days after the end of each fiscal quarter of B&R Realty, in the case its unconsolidated balance sheet and related statements of the balance sheet, operations as of the end of and for such period or periods of) fiscal quarter and the previous then elapsed portion of the fiscal year., all certified by a Financial Officer of B&R Realty as presenting fairly in all material respects the financial condition and results of operations of B&R Realty and its Subsidiaries on an unconsolidated basis in accordance with GAAP consistently applied;
(df) concurrently with any delivery of financial statements under clause (a) or (b) aboveabove with respect to a fiscal month that is the last fiscal month of a fiscal quarter, a certificate of a Compliance Certificate executed by the Financial Officer of the Borrower Representative in substantially the form of Exhibit F Representative, (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 HF Foods 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 6.13, (iv) showing the calculation of EBITDA for B&R Realty and its consolidated Subsidiaries for the same period, determined in the case same manner as the calculation of financial statements delivered under clause EBITDA for HF Foods and its consolidated Subsidiaries, and (av) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(eg) as soon as available, but in any event not more than within 30 days prior to after the end beginning of each fiscal year of each BorrowerHF Foods, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower HF Foods and its Subsidiaries for each month of the upcoming fiscal year (“the "Projections”") in form and detail reasonably satisfactory to each the Administrative Agent;
(fh) as soon as available but in any event within 30 20 days of the end of each calendar monthmonth or within 3 days of the end of each week in the event that Availability falls below the greater of (i) $12,500,000 and (ii) 12.5% of the Revolving Commitment, and at such other times as may be necessary to re-determine Availability or as 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 the Administrative Agent may reasonably request;
(gi) as soon as available but in any event within 30 days of the end of together with each calendar month and at such other times as may be requested by the Administrative AgentBorrowing Base Certificate delivered pursuant to clause (h), as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:the Administrative Agent (not in Adobe *.pdf file):
(i) a detailed aging of the Working Capital Borrowers’ and Eligible Subsidiary’s Accounts (A) ' Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Working Capital Borrowers’ and each Eligible Subsidiary’s ' Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Working Capital Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateWorking Capital Borrowers);
(iii) a worksheet of calculations prepared by the Working Capital 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 Working Capital Borrowers’ and Eligible Subsidiaries’ ' Accounts and Inventory between (A) the amounts shown in the Working Capital Borrowers’ and Eligible Subsidiary’s ' general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (h) above as of such date;
(v) a reconciliation of the loan balance per the Working Capital Borrowers’ ' general ledger to the loan balance under this Agreement;; and
(hvi) as soon as available but in any event within 30 days a schedule and aging of the end of each calendar month (as of the month then ended)Working Capital Borrowers' accounts payable, an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable 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 endedAgent;
(j) promptly upon any the Administrative Agent’s 's request:
(i) copies of invoices in connection with the invoices issued by the Working Capital 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 or Equipment purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(iv) copies an updated customer list for the Working Capital Borrowers and their Subsidiaries, which list shall state the customer's name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of each Borrower’s and each Eligible Subsidiary’s the Borrower Representative;
(v) the Working Capital Borrowers' sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and;
(vvi) 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 Tax returns filed by any Loan Party with the U.S. Internal Revenue Service IRS; and
(vii) a certificate of good standing or the relevant tax authority substantive equivalent available in the jurisdiction of any foreign incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such 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;
(mk) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Borrower to its public shareholders generally, as the case may be;
(nl) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Loan Party or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore Borrower applicable Multiemployer Plan, the applicable Loan Party or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtor; andshall provide copies of such documents and notices promptly after receipt thereof;
(om) promptly following any request therefor, (i) such other information regarding the operations, assets, liabilities, changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreementthe Loan Documents, as the Administrative Agent or any Agent Lender may reasonably requestrequest and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable "know your customer" and anti-money laundering rule and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; and
(n) promptly after receipt thereof by any Borrower or any Subsidiary, copies of each notice or other correspondence received from the SEC concerning any investigation or possible investigation or other inquiry by the SEC regarding financial or other operational results of any Borrower or any Subsidiary thereof. Notwithstanding Documents required to be delivered pursuant to Section 5.01(a), (b) or (n) (to the foregoingextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, upon if so delivered, shall be deemed to have been delivered on the occurrence date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and during Retrieval system (XXXXX); or (ii) on which such documents are posted on a Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the continuance of an Event of Default Administrative Agent have access (whether a commercial, third-party website 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, whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, in its sole discretionthe Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by fax or through an Electronic System) of the posting of any such documents and provide to the Administrative Agent through an Electronic System electronic versions (i.e., may require soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by any Borrower with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocuments to it and maintaining its copies of such documents.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableeach Lender:
(a) within 90 on the date that is the earliest of (i) the date on which Holdings’ (or, prior to a Permitted Change of Control Transaction, Griffon’s or Holdings’) financial statements shall have been filed with the SEC, (ii) the date Holdings’ (or, prior to a Permitted Change of Control Transaction, Griffon’s or Holdings’) financial statements are required to be filed with the SEC (without regard to any extension of the SEC’s filing requirements) and (iii) the day which is 120 days after the end of each fiscal year of Holdings, its the audited consolidated balance sheet and related statements of operationsincome, partnersstockholders’ equity and cash flows of Holdings and its Subsidiaries as of the end of and for such year, together with consolidating balance sheets and statements of income, stockholders’ equity and cash flows by business unit consistent with past practice and, within each business unit, a further breakdown of consolidating financial information between Subsidiaries which are Loan Parties within such business unit and Subsidiaries which are not Loan Parties within such business unit (which consolidating financial information shall not be subject to the audit procedures applied in the audit but shall be certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Holdings and its Subsidiaries on a consolidating basis in accordance with GAAP), setting forth in each case in comparative form the figures for the previous fiscal year, all reported on on, in the case of the consolidated financial statements, by Xxxxx Xxxxxxxx LLP or other 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 accountantstogether with a Narrative Report with respect thereto;
(b) within 45 on the date that is the earliest of (i) the date on which Holdings’ (or, prior to a Permitted Change of Control Transaction, Griffon’s or Holdings’) financial statements shall have been filed with the SEC, (ii) the date Holdings’ (or, prior to a Permitted Change of Control Transaction, Griffon’s or Holdings’) financial statements are required to be filed with the SEC (without regard to any extension of the SEC’s filing requirements) and (iii) the day which is 60 days after the end of each of the first three quarterly periods of each fiscal quarters year of Holdings (in the case of Holdings, commencing with respect to the fiscal year quarter ending December 31, 2007) and each fiscal quarter for 2010, 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 operationsincome, partnersstockholders’ equity and cash flows of Holdings and its Subsidiaries as of the end of and for such year, together with consolidating balance sheets and statements of income, stockholders’ equity and cash flows by business unit consistent with past practice and, within each business unit, a further breakdown of consolidating financial information between Subsidiaries which are Loan Parties within such business unit and Subsidiaries which are not Loan Parties within such business unit 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 corresponding period or periods 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 a Financial Officers Officer 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 and consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-year end audit adjustments and the absence of footnotes, together with a Narrative Report with respect thereto;
(c) within 30 days after the end of each fiscal month of Holdings (other than for or, in the third, sixth and ninth case of a fiscal month which is the last fiscal month of any a fiscal yearquarter of Holdings, by the date on which the quarterly financial statements of Holdings are due pursuant to Section 5.01(b)) or (iii) in the case of the US Borrowerfirst six fiscal months ending after the closing date, its 45 days after such end of Holdings, commencing with respect to the fiscal month ended October 31, 2010, the consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule cash flows of distributions Holdings and Capital Expenditures its Subsidiaries 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 all certified by 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 Holdings and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently appliedGAAP, 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.
Appears in 1 contract
Samples: Credit Agreement (Griffon Corp)
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersshareholders’ 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 Deloitte & Touche LLP or other 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 the Company and its consolidated Subsidiaries 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersshareholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) at any time that any Revolving Loan is outstanding or the LC Exposure is equal to or greater than $100,000,000, within 30 20 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 BorrowerCompany, its consolidated balance sheet and related consolidated statements of operations operations, shareholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting that such financial statements present fairly in all material respects the financial condition and results of operations of each Borrower the Company and its consolidated Subsidiaries 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 6.12 and, if any Convertible Notes Conversion Date shall have occurred since the delivery of the last certificate under this paragraph, Section 6.13, (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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 within 15 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month of the upcoming fiscal year (“Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of after the end of each calendar monthmonth (and, during any Enhanced Reporting Period, within 3 days after the end of each week), and at such other times as may be requested by the Administrative Agent, a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the period then endedend of such month (or, a US Borrowing Base Certificateif applicable, 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 therewithsuch week), together with supporting information and 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 that the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month (and, during any Enhanced Reporting Period, within 3 days after the end of each week), and at such other times as may be requested by the Administrative Agent, the following information as of the period end of the month (or, if applicable, the week) then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts Credit Card Receivables (A) including all invoices aged aging by due date (with a report of any accounts on greater than 60 day terms) credit card issuer and processor and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date date, prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and balance due for from each Account Debtorcredit card issuer or credit card processor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category type and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers), 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 Credit Card Receivables and Eligible Inventory, such worksheets detailing the Accounts Credit Card Receivables and Inventory excluded from Eligible Accounts Credit Card Receivables and Eligible Inventory and the reason reasons for such exclusion;
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts Credit Card Receivables 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;.
(hi) at any time that any Revolving Loan is outstanding or the LC Exposure is equal to or greater than $100,000,000, as soon as available but in any event within 30 20 days of after the end of each calendar month (and at such other times as may be reasonably requested by the Administrative Agent, a schedule and aging of the Borrowers’ accounts payable as of the month then ended), an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file reasonably acceptable 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 endedAgent;
(j) promptly upon any the 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;; and
(iiiii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivk) copies of each Borrower’s and each Eligible Subsidiary’s at such other times as may be requested by the Administrative Agent, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; andjournal as of the period then ended;
(vl) a detailed listing of all advances of proceeds of Loans at such other times as may be 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 thereofAdministrative Agent, copies of all tax returns filed by any Loan Party with the U.S. US 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 BorrowerService;
(m) within 20 days after the first Business Day of March of each year, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(n) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Borrower 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 Borrower 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 Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding Information required to be delivered pursuant to clauses (a), (b) and (o) of this Section shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the foregoing, upon the occurrence and during the continuance of Administrative Agent on an Event of Default IntraLinks or during any period in similar site to which the aggregate US Availability Lenders have been granted access or shall be available on the website of the Securities and Canadian Availability is less than $25,000,000 Exchange Commission at xxxx://xxx.xxx.xxx (and a confirming electronic correspondence shall have been delivered or UK Availability is less than $10,000,000, caused to be delivered to the Lenders providing notice of such posting or availability); provided that the Borrowers shall deliver paper copies of such information to any Lender that requests such delivery. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by 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.
Appears in 1 contract
Samples: Credit Agreement (Dress Barn Inc)
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 ninety (90) days after the end of each fiscal year of HoldingsKodiak Corp, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 independent public accountants of recognized national standing and or otherwise acceptable to the Required Lenders (without a “going concern” ”, or like qualification or exception other than solely with respect to an upcoming maturity date of Indebtedness or a potential inability to satisfy a financial covenant for a future test date, and without any qualification qualification, commentary 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 Kodiak Corp 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 forty-five (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)Kodiak Corp, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings Kodiak Corp 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 footnotesfootnotes );
(c) within 30 days ten (10) Business 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 delivery 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 deemed delivery of financial statements under clause (a) or clause (b) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate (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 Kodiak Corp 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 6.12, including setting forth reasonably detailed calculations of the Leverage Ratio for such period then ended and an indication of the Applicable Rate based on such calculation, (iv) unless disclosed in the case of financial statements delivered under clause (a) onlyaccompanying such certificate, 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (v) providing a status report regarding each gas compression agreement covering any Compressor Unit, including whether such servicing agreement has been amended, restated, modified or terminated during such period; provided that the Borrowers shall only be required to deliver a copy of any new gas compression agreement or any amendment, modification or termination of any gas compression agreement if requested by the Administrative Agent in writing, (vi) setting forth, in form and detail reasonably satisfactory to the Administrative Agent, as of the date of such certificate a true and complete list of all Swap Agreements (including commodity price swap agreements, forward agreements or contracts of sale which provide for prepayment for deferred shipment or delivery of oil, gas or other commodities) to which any Obligor or any of its Restricted Subsidiaries is a party, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), any credit support agreements relating thereto, any margin required or supplied under any credit support document, and the counterparty to each such agreement, (vii) at any time that any of the consolidated Subsidiaries of Kodiak Corp are not Restricted Subsidiaries, setting forth consolidating information that summarizes in reasonable detail the differences between the information relating to Kodiak Corp and its Restricted Subsidiaries, on the one hand, and all consolidated Unrestricted Subsidiaries, on the other hand, which consolidating information shall be certified by a Financial Officer of the Borrower Representative as having been fairly presented in all material respects, (viii) including notice if any Obligor, either directly or through any agent, employee, licensee or designee, filed an application for the registration of any Material Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency during such period and (ix) specifying whether any Loan Party has entered into any Specified Compressor Engine Transactions during such period and providing a list of Specified Compressor Engines subject thereto and the related Specified Compressor Engine Packages.
(d) [reserved];
(e) as soon as available, but in any event not more than 30 within thirty (30) days prior to after the end of each fiscal year of each the Kodiak Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower Kodiak Corp and its consolidated Restricted Subsidiaries for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 days of twenty (20) Business Days after the end of each calendar month, at such time as delivery of an updated Borrowing Base Certificate is required by Section 6.05(g) and at such other times as may be reasonably necessary to redetermine Availability with respect to Loans or Letters of Credit hereunder or 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 the Administrative Agent may reasonably request; provided that, at any time an Activation Period exists, a Borrowing Base Certificate shall be delivered weekly within three (3) Business Days after the end of each calendar week;
(g) as soon as available but in any event within 30 days of twenty (20) Business Days after the end of each calendar month (or within three (3) Business Days after the end of each calendar week during an Activation Period) 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 the Administrative Agent:
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and 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 date, prepared in a manner reasonably acceptable to the Administrative Agent together with a summary specifying the name and balance due for each Account DebtorAgent;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by product category type (including Compressor Units and Compressor Components), and by value volume on hand, which Inventory shall be valued at the lower of weighted-average cost (determined on a FIFO Basis) or market (which approximates cost) 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, and (B) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Loan Parties since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Loan Parties and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateLoan Parties);
(iii) a worksheet of calculations prepared by the Borrowers Kodiak Borrower to determine Loan Parties’ Eligible Accounts Accounts, Eligible Inventory, Eligible Compressor Components, Eligible Rental Compressors and Eligible InventoryNew Rental Fleet, such worksheets detailing the Accounts and Inventory (including Compressor Units and Compressor Components) excluded from Eligible Accounts Accounts, Eligible Inventory, Eligible Compressor Components, Eligible Rental Compressors and Eligible Inventory New Rental Fleet and the reason for such exclusion;
(iv) a reconciliation of the Borrowers’ and Eligible SubsidiariesLoan Parties’ Accounts and Inventory between (A) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger ledgers and financial statements and the reports delivered pursuant to clauses clause (i) and clause (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clause (i) and clause (ii) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date; and
(v) a reconciliation of the loan balance per the Borrowers’ Xxxxxx Xxxxxxxx’s general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 days of twenty (20) Business Days after the end of each calendar month (or within three (3) Business Days after the end of each calendar week during an Activation Period) and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Loan Parties’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(i) within 30 days concurrently with the delivery of the end Compliance Certificate pursuant to Section 5.01(c) relating to the fiscal quarters ending March 31 and September 30 of each calendar monthfiscal year (or such later date as the Administrative Agent may agree in its sole discretion), an updated customer list for the Kodiak Borrower and its Restricted Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a report listing all outstanding Swap Obligations as of text formatted file acceptable to the month then endedAdministrative Agent;
(j) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties 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 or Equipment purchased by any Loan Party;; and
(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, but in any event within fifteen (15) days following the date the same are required to be filed with the SEC, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Obligor or any Restricted Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Kodiak Corp to its public shareholders generally, as the case may be;
; provided that the Borrower Representative shall be deemed to have furnished the information required by this clause (nk) promptly upon if Kodiak Corp shall have timely made the request of the Administrative Agent same available on “XXXXX” (or any successor thereto) and/or on its home page on the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower and the Dubai Borrowerworldwide web (currently located at xxxx://xxx.xxxxxxxxx.xxx), 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
(ol) promptly following any reasonable request therefor, (i) such other information regarding the operations, business affairs and or financial condition of any Loan Party Kodiak Corp or any Subsidiary, Restricted Subsidiary (including any Plan or compliance Multiemployer Plan and any reports or other information required to be filed with respect thereto under the terms of this Agreement, Code or under ERISA) as the Administrative Agent (or 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 Lender which the aggregate US Availability and Canadian Availability is less than $25,000,000 or UK Availability is less than $10,000,000, has requested through the Administrative Agent) may reasonably request and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation. The obligation to provide the documents required to be delivered pursuant to Section 5.01(a) or (b) may be satisfied by the public filings of Kodiak Corp with the SEC (to the extent any such documents are included in its sole discretionmaterials otherwise filed with the SEC) and, may require if so delivered, shall be deemed to have been delivered on the date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX); or (ii) on which such documents are posted on a Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether made available by the Administrative Agent); provided that (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, the Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by fax or through Electronic Systems) of the posting of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by the Borrower Representative with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocuments to it and maintaining its copies of such documents.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent (for the Administrative Agent's distribution of each item in clauses (a), (b), (c), (e) and in the case of documents and information required (f) below to be delivered each Lender through a service such as Intralinks or such other means as determined by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:):
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Borrower 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 forty-five (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 of each fiscal year of Holdings thereafter)the Borrower (or, commencing with for any fiscal month of the fiscal quarter ended June 30Borrower during which an Excess Availability Reporting Period was in effect at any point during such month, 2007 (and as to which such financial statements may be delivered not later than 60 within 30 days after of the end of such quarterly periodfiscal month of the Borrower, to the extent requested by the Administrative Agent), (i) its (x) consolidated and consolidating balance sheet and as of the end of such fiscal quarter (or such fiscal month, as applicable), (y) related statements of operationsoperations for such fiscal quarter (or such fiscal month, partnersas applicable) and the then elapsed portion of such fiscal year, and (z) related statements of stockholders’ equity and cash flows for the then elapsed portion of such fiscal year, and (ii) (x) a consolidated balance sheet for the Borrower and its consolidated Restricted Subsidiaries as of the end of such fiscal quarter (or such fiscal month, as applicable), (y) related statements of operations for the Borrower and its consolidated Restricted Subsidiaries for such fiscal quarter (or such fiscal month, as applicable) and the then elapsed portion of such fiscal year, and (z) related statements of stockholders’ equity and cash flows for the Borrower and its consolidated Restricted Subsidiaries 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 (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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries (or the Borrower and its consolidated Restricted Subsidiaries, as applicable) 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 concurrently with, or on the end of each fiscal month (other than for same day as the thirdday of, 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 D (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 the Borrower and its consolidated Subsidiaries (or the Borrower and its consolidated Restricted Subsidiaries, as applicable) 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 (whether or not a Compliance Period is in effect at such time), (iv) in the case of financial statements delivered under clause identifying all Material Subsidiaries and (av) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) [intentionally omitted];
(e) as soon as available, available but in any event not more no later than 30 sixty (60) days after the end of, and no earlier than thirty (30) days prior to the end of of, each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 fifteen (15) days of the end of each calendar monthmonth (or, for any calendar week during which an Excess Availability Reporting Period was in effect at any time during such calendar week, within three (3) Business Days of the end of such calendar week, to the extent requested by the Administrative Agent), and at such other times as may be necessary to re-determine Availability or 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 the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 fifteen (15) 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 the Administrative Agent:;
(i) a detailed aging of the Borrowers’ and Eligible SubsidiaryBorrower’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiarythe Borrower’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any material variances in excess or other results of $50,000 Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Borrower and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrower);
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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’ Borrower’s Accounts and Inventory between (A) the amounts shown in the Borrowers’ and Eligible SubsidiaryBorrower’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date; and
(v) a reconciliation of the loan balance per the Borrowers’ Borrower’s general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 fifteen (15) days of the end of each calendar month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(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 the Administrative Agent’s reasonable request:
(i) copies of invoices in connection with the specified invoices issued by the Borrowers Borrower in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of specified purchase orders, invoices, and shipping and delivery documents in connection with any Inventory purchased by any Loan Party;; and
(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
(oj) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement, as any the Administrative Agent may reasonably request. Notwithstanding Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the foregoingdate on which such documents are (i) filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System, upon (ii) posted or the occurrence and during Borrower provides a link thereto on hxxx://xxx.xxxxx.xxx; or (iii) posted on the continuance of Borrower’s behalf on an Event of Default Internet or during any period in intranet website, if any, to which the aggregate US Availability and Canadian Availability is less than $25,000,000 Administrative Agent has access (whether a commercial, third-party website or UK Availability is less than $10,000,000, whether sponsored by the Administrative Agent); provided that, in its sole discretion, the Borrower shall notify (which may require be by telecopy or electronic mail) the delivery Administrative Agent of the reports, certificates filing of any such documents and other documents required by Sections 5.01(f), (g), and (h) (with respect provide to the US BorrowersAdministrative Agent by electronic mail electronic versions (i.e., UK Borrower or Canadian Borrowersoft copies) 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 certificatesdocuments.
Appears in 1 contract
Samples: Credit Agreement (Akorn Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Company 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 reasonably acceptable to the Required Lenders Administrative Agent (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such auditaudit other than any qualification regarding the adoption of accounting pronouncements) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter provided that the delivery within the time period specified above of the Company’s Form 10-K for such fiscal year (together with the Company’s annual report to shareholders, if any, prepared by said accountantspursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements therefore and filed with the SEC shall be deemed to satisfy the requirements of this Section 5.01(a); and provided further, that the Company shall be deemed to have made such delivery of such Form 10-K if it shall have timely made such Form 10-K available on “XXXXX” and on its home page on the worldwide web (at the date of this Agreement located at xxx.xxxxxxxxxxxxxxx.xxx) and shall have given Administrative Agent prior notice of such availability on XXXXX and its home page in connection with each delivery (such availability and notice thereof being referred to as “Electronic Delivery”);
(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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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, provided that delivery within the time period specified above of copies of the Company’s Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 5.01(b); and provided further that the Company shall be deemed to have made such delivery of such Form 10-Q if it shall have timely made Electronic Delivery thereof;
(c) within 30 days after the end of each fiscal month (other than for the third, sixth and ninth a fiscal month of any fiscal year) (i) ending as of the US Borrowerend of a fiscal quarter of the Company), its the Company’s consolidated balance sheet and related consolidated statements of operations operations, and a schedule of distributions and Capital Expenditures cash flows 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 , all certified by one of financial statements under clause (a) or (b) above, a certificate of a its 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), Officers as presenting fairly in all material respects (to the best knowledge of such Financial Officer) the financial condition and results of operations of each Borrower the Company 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.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, and in the case of documents and information required Agent (for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:each Lender):
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification qualification, commentary or exception and without any qualification or exception as to the scope of such auditaudit in any material respect) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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 forty-five (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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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 thirty (30) days after the end of each fiscal month of the Borrower (other than for or, if such fiscal month is the third, sixth and ninth last fiscal month of any fiscal year) (i) quarter of the US Borrower, within forty-five (45) days after the end of such fiscal month of the Borrower), its consolidated balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower 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;
(d) concurrently with any delivery of financial statements under clause (aa),(b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the 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 is continuing and, if a Default has occurredoccurred and is continuing, 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 6.12 (it being understood and agreed that, for purposes of clarity, such calculations with respect to Section 6.12(a) shall be provided for informational purposes even if the Borrower is not then required to comply with Section 6.12(a)), and (iv) in the case of financial statements delivered under clause (a) only, stating whether any material change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such material change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, available but in any event not more no later than 30 forty-five (45) days after the end of, and no earlier than thirty (30) days prior to the end of of, each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 twenty (20) days of the end of each calendar monthmonth (or (i) from and after the date on which Availability is less than the greater of (x) 12.5% of the lesser of the Borrowing Base and the Aggregate Commitment and (y) $37,500,000 until such subsequent date, if any, on which Availability is greater than or equal to the greater of (x) 12.5% of the lesser of the Borrowing Base and the Aggregate Commitment and (y) $37,500,000 for a period of twenty (20) consecutive Business Days, within three (3) Business Days after the end of each calendar week; provided, that, in the case of any such weekly Borrowing Base Certificate, Eligible Inventory shall be based upon a calculation of Eligible Inventory as of the end of the most recently completed calendar month ending at least twenty (20) days prior to the date of such weekly Borrowing Base Certificate or (ii) more frequently as the Borrower may elect), and at such other times as may be necessary to re-determine Availability or 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 therewiththerewith (including, in respect of any Borrowing Base Certificate delivered for a month or week which is also the end of any fiscal quarter of the Borrower, a calculation of Average Quarterly Availability for such quarter then ended and an indication of what the Applicable Rate is as a result of such Average Quarterly Availability), 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 the Administrative Agent may reasonably request; and the M&E Component of the Borrowing Base shall be updated (i) concurrently with the sale or commitment to sell any assets constituting part of the M&E Component, (ii) in the event such assets are idled for any reason other than routine maintenance or repairs for a period in excess of ten (10) consecutive days, and (iii) in the event that the value of such assets is otherwise impaired, as determined by the Administrative Agent’s in its Permitted Discretion;
(gh) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month and at such other times as may be requested by the Administrative AgentAgent in its Permitted Discretion, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:;
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by any Loan Party and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such datecomplaints and claims made against any Loan Party);
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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 SubsidiariesLoan Parties’ Accounts and Inventory between (A) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date; and
(v) a reconciliation of the loan balance per the BorrowersLoan Parties’ general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable 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 endedin its Permitted Discretion;
(j) within thirty (30) days of each March 31 and September 30, an updated customer list for the Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent in its Permitted Discretion and certified as true and correct by a Financial Officer;
(k) promptly upon any the Administrative Agent’s reasonable request:
(i) copies of invoices in connection with the invoices issued by the Borrowers any Loan Party 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivl) copies (i) at all times that a Borrowing Base Certificate is required to be delivered on a weekly basis pursuant to Section 5.01(g), within three (3) Business Days of the end of each calendar week and (ii) at such other times as may be requested by the Administrative Agent, as of the period then ended, the 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;
(vm) within thirty (30) days of the first Business Day of each March, a detailed listing certificate of all advances good standing or the substantive equivalent available in the jurisdiction of proceeds of Loans requested by the Borrower Representative incorporation, formation or organization 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 from the U.S. Internal Revenue Service or the relevant tax authority of any foreign appropriate governmental officer in such 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;
(mn) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Borrower to its public shareholders generally, as the case may be;
(no) promptly upon the after any request of therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or the Singapore Administrative Agent or the UAE Administrative agent any ERISA Affiliate may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the Singapore applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address notices from such administrator or sponsor and balance due for each Account Debtorshall provide copies of such documents and notices promptly after receipt thereof; and
(op) promptly following any request therefor, such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request, including but not limited to any information and documentation required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation. Notwithstanding Documents required to be delivered pursuant to Section 5.01(a), 5.01(b) or 5.01(n) (to the foregoingextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, upon if so delivered, shall be deemed to have been delivered on the occurrence date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and during Retrieval system (XXXXX); or (ii) on which such documents are posted on the continuance of Borrower’s behalf on an Event of Default Internet or during any period in intranet website, if any, to which each Lender and the aggregate US Availability and Canadian Availability is less than $25,000,000 Administrative Agent have access (whether a commercial, third-party website or UK Availability is less than $10,000,000, whether made available by the Administrative Agent); provided that the Borrower shall notify the Administrative Agent (by facsimile, in its sole discretionemail or through Electronic Systems) of the posting of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., may require soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the reports, certificates and other documents required by Sections 5.01(f), (g)referred to above, and (h) (in any event shall have no responsibility to monitor compliance by the Borrower with respect to the US Borrowersany such request by a Lender for delivery, UK Borrower and each Lender shall be solely responsible for timely accessing posted documents or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case requesting delivery of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt paper copies of such certificatesdocuments to it and maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (TimkenSteel Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of HoldingsParent, its audited consolidated balance sheet and related consolidated statements of operations, partnersshareholders’ 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 audited by and accompanied by the opinion of Deloitte & Touche LLP or another independent registered public accountants accounting firm of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification qualification, exception or exception emphasis and without any qualification or exception as to the scope of such audit, other than solely with respect to, or resulting solely from, an upcoming maturity date under this Credit Agreement occurring within one year from the time such opinion is delivered) to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and position, results of operations and cash flows of Holdings Parent and its consolidated Subsidiaries as of the end of and for such fiscal year on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(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)Parent, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and such fiscal quarter, the related consolidated statements of operations for such fiscal quarter and the then elapsed portion of the fiscal year and the related consolidated statement of 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 (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 a Financial Officer of the Financial Officers of the Borrower Representative Parent as presenting fairly in all material respects the financial condition and position, results of operations and cash flows of Holdings Parent and its consolidated Subsidiaries as of the end of and for such fiscal quarter and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) during any Enhanced Reporting Period, 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 Borrowerfirst two fiscal months of each fiscal quarter of Parent, its the consolidated balance sheet and related consolidated statements of operations and a schedule cash flows of distributions and Capital Expenditures Parent 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 year, all certified by a Financial Officer of Parent as presenting fairly in all material respects the financial condition 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 results of operations of Parent and a schedule of distributions and Capital Expenditures, its consolidated Subsidiaries as of the end of and for such fiscal month and the then elapsed such portion of the fiscal year on a consolidated basis in accordance with GAAP, subject to normal year, setting forth in each case in comparative form -end audit adjustments and the figures for the corresponding period absence of (or, in the case of the balance sheet, as of the end of such period or periods of) the previous fiscal year.footnotes;
(d) concurrently with any each delivery of financial statements under clause (a) or (b) above, a certificate of completed Compliance Certificate signed by a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Parent (i) certifying, in the case of the financial statements delivered under clause (b), as presenting ) that such financial statements present fairly in all material respects the financial condition and position, results of operations and cash flows of each Borrower Parent and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-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 of the Total Leverage Ratio as of the end of the applicable fiscal year or fiscal quarter, (iv) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and 6.12, (ivv) in the case of financial statements delivered under clause (a) only, stating whether if 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 occurredreferred to in Section 3.04, specifying the effect of such change on the financial statements accompanying such certificatecertificate (and, in the event of any such change referred to in Section 1.04(b)(ii), with respect to the amounts included in the calculation of the Fixed Charge Coverage Ratio for the period of four fiscal quarters of Parent then most recently ended, providing a reasonably detailed reconciliation of such amounts as they are reflected in the financial statements accompanying such certificate and as they would be reflected therein without giving effect to such change), (vi) certifying that all notices required to be provided under Sections 5.03 and 5.04 have been provided and (vii) if there are any Unrestricted Subsidiaries setting forth the financial information in detail reasonably satisfactory to the Administrative Agent for the applicable period for such Unrestricted Subsidiaries;
(e) as soon as available, but in any event not more than 30 [reserved];
(f) within 90 days prior to after the end of each fiscal year of each BorrowerParent, a completed Supplemental Perfection Certificate, signed by a Financial Officer of Parent, setting forth the information required pursuant to the Supplemental Perfection Certificate;
(g) promptly after the Parent is required to file its annual report on Form 10-K with the SEC, a copy of the plan and forecast (including projected Availability and a projected consolidated and consolidating balance sheet, income statement of operations and funds flow statementstatement of cash flow) of each Borrower Parent for each month quarter of the upcoming fiscal year (“Projections”) in form reasonably satisfactory to each Agentyear;
(fh) as soon as available but in any event within 30 days 15 Business Days (or, during any Weekly Reporting Period, 4 Business Days) after each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the end Borrowing Base as of such Borrowing Base Reporting Date, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request;
(i) as soon as available but in any event within 15 Business Days (or, during any Weekly Reporting Period, 4 Business Days) after each calendar monthBorrowing Base Reporting Date, and at such other times as may be requested by the Administrative Agent, the following information as of the period then ended, a US such 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 endedReporting Date, all delivered electronically in a text or Microsoft Excel formatted file in form reasonably acceptable to each the Administrative Agent:
(iA) a reasonably detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A1) including all invoices aged by due invoices’ invoice date (with a report of any accounts on greater than 60 day and payment terms) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner form reasonably acceptable to the Administrative Agent together with and (B) a summary aging of the Loan Parties’ Accounts specifying the name name, address and balance due for each Account Debtor;.
(ii) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts Receivables (A) including aging by each credit card issuer and credit card processor and (B) reconciled to the Borrowing Base Certificate delivered as of such date, in a form reasonably acceptable to the Administrative Agent, together with a summary specifying the balance due from each credit card issuer or credit card processor;
(iii) a schedule reasonably detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s InventoryTuxedo Rental Product, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Tuxedo Rental Product in transit, any Inventory Tuxedo Rental Product located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by product category type and by value volume on hand, which Inventory Tuxedo Rental Product shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 or other results of $50,000 Tuxedo Rental Product counts performed by the Loan Parties since the last Tuxedo Rental Product schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Loan Parties), and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iiiiv) a schedule detailing the Loan Parties’ Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement or warehouse agreement), by product type and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a first-in, first-out basis) or market and adjusted for 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 or other results of Inventory counts performed by the Loan Parties since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Loan Parties), and (C) reconciled to the Borrowing Base Certificate delivered as of such date;
(v) a worksheet of calculations prepared by the Borrowers Loan Parties to determine Eligible Credit Card Accounts Receivables, Eligible Accounts, Eligible Tuxedo Rental Inventory and Eligible Inventory, such worksheets detailing the Credit Card Accounts Receivables, Accounts, Tuxedo Rental Product and Inventory excluded from Eligible Credit Card Accounts Receivables, Eligible Accounts, Eligible Tuxedo Rental Inventory and Eligible Inventory and the reason reasons for such exclusion;
(ivvi) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Credit Card Accounts Receivables, Accounts, Tuxedo Rental Product and Inventory between the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i), (ii), (iii) and (iiiv) above; and
(vvii) a reconciliation of the loan balance per the BorrowersLoan Parties’ general ledger to the loan balance under this Agreement;
(hj) as soon as available but in any event within 30 days of 15 Business Days after the end of each calendar month (fiscal month, a schedule and aging of the Loan Parties’ accounts payable as of the month then ended), an accounts payable forecast or aging consisting of delivered electronically in a break down of accounts by due date text formatted file in a form substantially similar to the form of accounts payable forecast provided reasonably acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(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[Reserved];
(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[Reserved];
(m) [Reserved];
(n) [Reserved];
(o) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party Parent or any Subsidiary with the Securities and Exchange Commission, SEC or any Governmental Authority succeeding to any Canadian federal or all of the functions of said Commissionprovincial securities commission, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries Parent to its public shareholders generally, as the case may be; provided that the U.S. Borrower shall be deemed to have satisfied the requirements of this Section 5.01(o) upon the filing of such reports, statements or materials through the SEC’s XXXXX system or the publication by Parent of such reports, statements or materials on its website;
(np) promptly after any reasonable written request therefor by the Administrative Agent, copies of (x)(i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed by any Loan Party or any ERISA Affiliate with the Internal Revenue Service with respect to each Plan; (ii) the most recent actuarial valuation report for each Plan; (iii) such other documents or governmental reports or filings relating to any Plan and concerning any ERISA Event as the Administrative Agent shall reasonably request and (y)(i) any material documents described in Section 101(k)(1) of ERISA that the Loan Parties or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(1)(1) of ERISA that the Loan Parties or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Loan Parties or any ERISA Affiliate have not requested such material documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, upon request by the Administrative Agent, the applicable Loan Party or ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof; provided, further that notwithstanding anything herein the rights of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent under Section 5.01(p)(y)(ii) shall be exercised not more than once with respect to Account Debtors the same Multiemployer Plan during any applicable plan year;
(q) promptly after the filing thereof with any Governmental Authority, a copy of each actuarial valuation report and, upon request of the Singapore Borrower and the Dubai Borrower)Canadian Administrative Agent, but not more than two times Annual Information Return in respect of any twelve (12) month period, a summary specifying the name, address and balance due for each Account DebtorCanadian Benefit Plan or Canadian Pension Plan; and
(or) promptly following after any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Parent or any Subsidiary, or compliance with the terms of this Agreementany Loan Document, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding Information required to be delivered pursuant to clause (a), (b) or (o) of this Section shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the foregoing, upon the occurrence and during the continuance of Administrative Agent on an Event of Default IntraLinks or during any period in similar site to which the aggregate US Availability and Canadian Availability is less than $25,000,000 Lenders have been granted access or UK Availability is less than $10,000,000, shall be available on the website of the SEC at http://www.sec.govhttp://xxx.xxx.xxx. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by 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.
Appears in 1 contract
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 applicableAgents:
(a) As soon as available, but in any event, within 90 days after the end of each fiscal year of Holdingsthe Company, its (i) the audited consolidated balance sheet of the Company and its Subsidiaries and related statements of operations, partnersstockholders’ 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 KPMG LLP or another registered public accountants accounting firm of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification or exception and without any material 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter required accountants’ communications to the Company’s Audit Committee related to significant deficiencies and material weaknesses prepared by said accountants, and (ii) the unaudited consolidating balance sheets of the US Loan Parties, the Canadian Group Members and the other Foreign Subsidiaries and related consolidating statements of operations 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 certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the US Loan Parties, the Canadian Group Members or the other Foreign Subsidiaries, as the case may be, on a consolidating basis;
(b) As soon as available, but in any event, within 45 days after the end of each of the first three fiscal quarters of Holdings the Company, (in i) the case unaudited consolidated balance sheet of the fiscal year ending December 31, 2007) Company 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 Subsidiaries and related statements of operations, partners’ equity and cash flows operations 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 Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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, and (ii) the unaudited consolidating balance sheets of the US Loan Parties, the Canadian Group Members and the other Foreign Subsidiaries and related statements of operations 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, all certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the US Loan Parties, the Canadian Group Members or the other Foreign Subsidiaries, as the case may be, on a consolidating basis;
(c) during any Reporting Frequency Increase Period, 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 BorrowerCompany, its the unaudited consolidated balance sheet of the Company and its Subsidiaries 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., all certified by one of the Financial Officers of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 6.12 and (iv) in the case of financial statements delivered under clause (a) only, stating whether any change in GAAP or in the application thereof affecting the Company and its Subsidiaries has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines or the policies of the relevant accounting firm);
(f) as soon as available, but in any event not more than 30 days on or prior to the end date that is 30 days after the last day of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the US Administrative Agent;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar month, (or, during any Reporting Frequency Increase Period, within 3 Business Days of the end of each week) and at such other times as may be requested by the Administrative AgentAgents, as of the period then ended, an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, Certificate and a Canadian Borrowing Base Certificate, a UAE Borrowing Certificateeach calculated as of the last day of the calendar month (or, a Singapore Borrowing Base Certificate and a UK Borrowing Base Certificateduring any Reporting Frequency Increase Period, as of the end of each week) most recently ended, and supporting information in connection therewith, together with any additional reports with respect to the US Aggregate Borrowing Base, Canadian Borrowing Base, UAE US Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK and Canadian Borrowing Base as any Agent the Administrative Agents may reasonably request;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month (or, during any Reporting Frequency Increase Period, within three Business Days of the end of each week) and at such other times as may be requested by the US Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the US Administrative Agent:
(i) a detailed aging of the BorrowersLoan Parties’ Billed Accounts and Eligible Subsidiary’s Unbilled Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Aggregate Borrowing Base Certificate, the US Borrowing Base Certificate and the Canadian Borrowing Base Certificate, delivered as of such date prepared in a manner reasonably acceptable to the US Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ Eligible Inventory and each Eligible Subsidiary’s InventoryWIP, in form satisfactory to the US Administrative Agent, (A1) by location (showing any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement)location, by product category type, and by value volume on hand, which Eligible Inventory shall and Eligible WIP shall, in each case, be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent has Agents have previously indicated to the Borrower Representative are deemed by the Administrative Agent Agents to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Paper Inventory counts performed by the Borrowers since the last Paper Inventory schedule, and (C3) reconciled to the applicable Aggregate Borrowing Base Certificate, US Borrowing Base Certificate and Canadian Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers to determine Eligible Billed Accounts, Eligible Unbilled Accounts and Eligible Inventory, such worksheets detailing the Accounts Billed Accounts, Unbilled Accounts, Paper Inventory and Inventory WIP excluded from Eligible Accounts Billed Accounts, Eligible Unbilled Accounts, Eligible Inventory and Eligible Inventory WIP and the reason for such exclusion;
(iv) a reconciliation of the BorrowersLoan Parties’ Billed Accounts, Unbilled Accounts, Paper Inventory and Eligible Subsidiaries’ Accounts and Inventory WIP between the amounts shown in the BorrowersLoan Parties’ 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;
(hi) as soon as available but in any event within 30 20 days of the end of each calendar month (and at such other times as may be requested by the US Administrative Agent, as of the month then ended), an a schedule and aging of the Borrowers’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar text formatted file acceptable to the form of accounts payable forecast provided to the US 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 endedAgent;
(j) as soon as available but in any event within 20 days of March 31 and September 30 of each year, as of the quarter then ended, and at such other times as may be requested by the US Administrative Agent, a list of all customer addresses, delivered electronically in a text formatted file acceptable to the US Administrative Agent;
(k) 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 Paper Inventory or Equipment 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 the Borrowers’ 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 calendar month immediately preceding calendar month such request 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 20 days of each March 31 and September 30of each year, an updated customer list a certificate of good standing, status or compliance, as applicable, for each Borrower and Loan Party from the appropriate governmental officer in its Subsidiariesjurisdiction of incorporation, which list shall state the customer’s nameformation, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borroweror organization;
(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 the Company 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 the Company to its public shareholders generally, as the case may be;
be (n) promptly upon the request of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent provided that delivery shall not be required with respect to Account Debtors of documents, or links to documents, posted on the Singapore Borrower and the Dubai BorrowerCompany’s website), 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
(on) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agents or any Agent Lender (through the US Administrative 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.
Appears in 1 contract
Samples: Credit Agreement (Bowne & Co Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of HoldingsParent, its audited consolidated balance sheet and related consolidated statements of operations, partnersshareholders’ 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 certified by independent public accountants a Financial Officer 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) Parent to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and position, results of operations and cash flows of Holdings Parent and its consolidated Subsidiaries as of the end of and for such fiscal year on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(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)Parent, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and such fiscal quarter, the related consolidated statements of operations for such fiscal quarter and the then elapsed portion of the fiscal year and the related consolidated statement of 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 (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 a Financial Officer of the Financial Officers of the Borrower Representative Parent as presenting fairly in all material respects the financial condition and position, results of operations and cash flows of Holdings Parent and its consolidated Subsidiaries as of the end of and for such fiscal quarter and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP, 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 Borrowerfirst two fiscal months of each fiscal quarter of Parent, its the consolidated balance sheet and related consolidated statements of operations and a schedule cash flows of distributions and Capital Expenditures Parent 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 year, all certified by a Financial Officer of Parent as presenting fairly in all material respects the UK Borrowerfinancial position, the UAE Borrower and the Singapore Borrower on an individual (non-consolidated) basis for each such Person, its balance sheet and related statements results of operations and a schedule cash flows of distributions Parent and Capital Expenditures, its consolidated Subsidiaries as of the end of and for such fiscal month and the then elapsed such portion of the fiscal year on a consolidated basis in accordance with GAAP, subject to normal year, setting forth in each case in comparative form -end audit adjustments and the figures for the corresponding period absence of (or, in the case of the balance sheet, as of the end of such period or periods of) the previous fiscal year.footnotes;
(d) concurrently with any each delivery of financial statements under clause clauses (a) or through (bc) above, a certificate of completed Compliance Certificate signed by a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Parent (i) certifying, in the case of the financial statements delivered under clause clauses (b), as presenting a) through (c) above that such financial statements present fairly in all material respects the financial condition and position, results of operations and cash flows of each Borrower Parent and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-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 [reserved], (iv) in the case of financial statements delivered under clause [reserved], (av) only, stating whether if 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 occurredreferred to in Section 3.04, 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) certificate and (Bvi) 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 certifying that all notices required 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 dateprovided under Section 5.04 have been provided;
(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.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (Tailored Brands Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Agent will furnish to the Administrative Agent, and in the case of documents and Agent (which will promptly furnish such 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:Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year of HoldingsHoldings (or, solely with respect to the first fiscal year ending after the Effective Date, as soon as available, but in any event within 120 days), (i) its audited consolidated balance sheet and related statements of operationsearnings, partnersshareholders’ 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 (whose opinion shall not be qualified as to the Required Lenders (without a “going concern” scope of audit or like qualification or exception and without any qualification or exception as to the scope status of such auditHoldings and its consolidated Subsidiaries as a going concern) to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedand (ii) its unaudited consolidating balance sheet and related statements of earnings, accompanied shareholders’ 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 certified by any management letter prepared by said accountantsone of the Financial Officers of Holdings as presenting fairly, in all material respects, the financial condition and results of operations of Holdings and its consolidated Subsidiaries in accordance with GAAP;
(b) within 45 forty-five (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)(or, commencing solely with respect to the first three of such fiscal quarter ended June 30, 2007 (and as to which such financial statements may be delivered not later than 60 days quarters ending after the end of such quarterly periodEffective Date, as soon as available, but in any event within 60 days), its consolidated and consolidating balance sheet and related statements of operationsearnings, partnersshareholders’ 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 Holdings as presenting fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 thirty (30) days after the end of each fiscal month of Holdings (other than for or, solely with respect to the thirdfirst eight of such fiscal months ending after the Effective Date, sixth and ninth month of as soon as available, but in any fiscal year) (i) of the US Borrowerevent within 45 days), its consolidated balance sheet and related consolidated statements of operations earnings and a schedule of distributions and Capital Expenditures cash flows 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 of) the corresponding period or periods of) 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 other than with respect to any corresponding period of (or, in the case of the balance sheet, as of the end of such period or periods of) that occurred prior to the previous fiscal Effective Date), all certified by one of the Financial Officers of Holdings 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, subject to normal year.-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative Holdings in substantially the form of Exhibit F C (i) certifying, in the case certifying that no Event 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 or Default has occurred and, if a an Event of Default or Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) forth, in the case of the financial statements delivered under clause (a) onlyor (b), stating reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether any change or not a Trigger Event then exists) as of the end of the period to which such financial statements relate, (iii) describing in GAAP or reasonable detail such information with respect to Permitted Acquisitions and Permitted Payments consummated during the preceding fiscal quarter as the Agent may reasonably require, to the extent such information has not previously been supplied to the Agent hereunder, (iv) certifying, in the application thereof has occurred since the date case 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 delivered under clause (a) or (b), a list of names of all Immaterial Subsidiaries (if any), Unrestricted Subsidiaries (if any) and other Excluded Subsidiaries (if any), that each Subsidiary set forth on such certificate;list individually qualifies as an Immaterial Subsidiary, Unrestricted Subsidiary or other Excluded Subsidiary, as applicable, and that all Domestic Subsidiaries listed as Immaterial Subsidiaries in the aggregate comprise less than 10.0% of Total Assets of Holdings and the Subsidiaries at the end of the period to which such financial statements relate and represented (on a contribution basis) less than 10.0% of EBITDA for the period to which such financial statements relate and (v) setting forth, in the case of the financial statements delivered under clause (a), (b) or (c), a list of any Subsidiary that is not a Loan Party, but that Guarantees any Note and Specified Hedge Obligations.
(e) as soon as availableconcurrently with any delivery of financial statements under clause (a) above, but a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default under Section 6.12 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) concurrently with any delivery of consolidated financial statements under clause (a) or (b) above, the related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(g) within ninety (90) days (unless extended by the Agent in its sole discretion or, solely with respect to the first fiscal year ending after the Effective Date, 120 days; provided that, after any event not more than 30 such extension is granted, such extension may be revoked at any time by the Required Lenders upon five Business Days’ written notice to the Borrower Agent) after the beginning of each fiscal year, a detailed consolidated budget of Holdings and its Subsidiaries by month for such fiscal year (including a projected consolidated balance sheet and the related consolidated statements of projected cash flows and projected income of Holdings and its consolidated Subsidiaries for each quarter of such fiscal year);
(h) within thirty (30) days prior to after the end of each fiscal year of each Borrowermonth, a copy (i) an Expense and Statistical Statement relating to the refinery business of the plan Group Members, substantially in the form of Exhibit I, adjusted to include actual pricing for crude inputs and forecast refined products and (including ii) a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower for each month Retail Marketing Statement relating to the retail marketing business of the upcoming fiscal year (“Projections”) Group Members, substantially in the form reasonably satisfactory to each Agentof Exhibit J;[Reserved];
(fi) as soon as available but in any event within 30 days on or prior to the 20th day of each fiscal month, a Borrowing Base Certificate as of the end close of business on the last day of the immediately preceding fiscal month, together with such supporting information in connection therewith as the Agent may reasonably request (collectively, “Borrowing Base Information”), and which may include, without limitation, Inventory reports by category and location, together with a reconciliation to the corresponding Borrowing Base Certificate, deliver to the Agent a reasonably detailed calculation of each calendar monthcomponent of the Borrowing Base and the value of Eligible Inventory; provided that (i) if, at any time, Excess Availability is less than 65% of the lesser of (x) the aggregate Revolving Credit Commitment and (y) the Borrowing Base (but clause (ii) below does not apply) (the “Semi-Monthly Trigger”), then, until this clause (i) ceases to be applicable as provided below, the Borrower Agent shall deliver Borrowing Base Information on Wednesday of every other week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday (it being agreed that this clause (i) shall cease to be applicable once Excess Availability has equaled or exceeded the Semi-Monthly Trigger for at least thirty (30) consecutive days) and (ii) if, at any time, (A) Excess Availability is less than the greater of (x) 25% of the lesser of (1) the aggregate Revolving Credit Commitment and (2) the Borrowing Base and (y) $37,500,000 or (B) a Default or Event of Default is in existence (the “Weekly Trigger”), then, until this clause (ii) ceases to be applicable as provided below, the Borrower Agent shall deliver a Borrowing Base Certificate and such other times supporting information on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday (or, in the case of this clause (ii), more frequently as may be requested by the Administrative Agent) (it being agreed that this clause (ii) shall cease to be applicable once Excess Availability has equaled or exceeded the Weekly Trigger, as and no Default or Event of Default has been in existence, in each case for at least thirty (30) consecutive days); provided, further, that notwithstanding the period then endedabove, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore the Value of Non-Gasoline Inventory for any Borrowing Base Certificate and a UK Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect shall be deemed to be the US Borrowing Base, Canadian Borrowing Base, UAE Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base Value of such Non-Gasoline Inventory 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 weightedthen-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 preceding fiscal month, a report listing all outstanding Swap Obligations as of the month then ended;
(j) promptly upon any Administrative at the Agent’s request:
(i) copies of invoices in connection , concurrently 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;
Borrowing Base Certificate (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 or more frequently as requested by the Borrower Representative for each Borrower during Agent if a Collateral Report Trigger is in effect), deliver to the Agent a schedule of Inventory as of the last Business Day of the immediately preceding calendar month month, semi-monthly period or week, as applicable, of the Borrowers, itemizing and a detailed listing describing the kind, type and quantity of all intercompany loans made by Inventory, the Borrowers during such calendar month.applicable Borrower’s Cost thereof and the location thereof;
(k) at the Agent’s request, concurrently with the delivery of the Borrowing Base Certificate (or more frequently as soon requested by the Agent if a Collateral Report Trigger is in effect), deliver to the Agent a schedule of Receivables which (i) shall be as possible of the last Business Day of the immediately preceding month, semi-monthly period or week, as applicable, (ii) shall be reconciled to the Borrowing Base Certificate as of such last Business Day, and in any event within 30 days of filing thereof, copies (iii) shall set forth a detailed aged trial balance of all tax returns filed by of the Borrowers’ then existing Receivables, specifying the names, balance due and, if an Event of Default then exists, the addresses, for each Account Debtor obligated on any Loan Party with the U.S. Internal Revenue Service or the relevant tax authority of any foreign jurisdictionReceivable so listed;
(l) within 30 days of each March 31 and September 30deliver to the Agent, an updated customer list for each Borrower and its Subsidiariesat least three (3) Business Days prior to making any Permitted Acquisition or Permitted Payment, which list shall state calculations demonstrating in reasonable detail that 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 relevant transaction complies with the applicable Borrowerrelevant definition;
(m) in addition to reporting of Eligible Cash pursuant to each Borrowing Base Certificate, on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), the amount of Eligible Cash as of the close of business on the immediately preceding Tuesday;
(n) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials publicly filed by any Loan Party Holdings or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said CommissionSEC, or with any national securities exchange, or or, after an initial public offering of shares of capital stock of Holdings, distributed by any Loan Party or its Subsidiaries Holdings to its public shareholders generally, as the case may be;
(no) promptly upon following the Agent’s request therefor, all documentation and other information that the Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including 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 DebtorUSA PATRIOT Act; and
(op) as promptly as reasonably practicable from time to time following any the Agent’s request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Holdings or any Subsidiary, or compliance with the terms of this Agreementany Loan Document, as the Agent (on behalf of any Agent Lender) may reasonably request. Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default or during any period obligations 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), clauses (g), a) and (hb) (of this Section 5.01 may be satisfied with respect to financial information of Holdings and its Restricted Subsidiaries by furnishing the US Borrowersapplicable financial statements of Holdings (or any Parent) filed with the SEC; provided that, UK Borrower (i) to the extent such information relates to any Parent, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under clause (a) of this Section 5.01, such materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or Canadian Borrowerother independent public accountants of recognized national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be qualified as to the scope of audit or as to the status of Holdings (or such Parent) more frequently than monthlyand its consolidated subsidiaries as a going concern.
(i) upon written request by the Agent, including weekly Holdings shall deliver paper copies of such documents to the Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Agent and (ii) Holdings shall notify (which may be by facsimile or dailyelectronic mail) the Agent of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in which event, in every instance Holdings shall be required to provide paper copies of the case compliance certificates required by clause (d) of Borrowing Base Certificates, this Section 5.01 to the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesAgent.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, and in the case of documents and information required Agent for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or other 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 the Company 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 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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) from and after the date on which Aggregate Availability is less than the greater of $12,500,000 and 10% of the Aggregate Commitment (or an Event of Default has occurred and is continuing) and until such subsequent date, if any, on which Aggregate Availability is greater than the greater of $12,500,000 and 10% of the Aggregate Commitment for a period of thirty (30) consecutive calendar days (and no Event of Default then exists), within 30 twenty (20) 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 Borrowerfirst two fiscal months of each fiscal quarter, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders' equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by a Finan-cial Officer ox xxx Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consis-tently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently consis-tently 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 of the Fixed Charge Coverage Ratio as of the last day of the most recently ended period of four (4) Fiscal Quarters (provided that the Fixed Charge Coverage Ratio shall only be tested for compliance with Section 6.13 purposes during an FCCR Test Period) 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 referred to in Section 3.04 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 within ninety (90) days prior to after the end of each fiscal year of each Borrowerthe Company, 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”) Company and its Subsidiaries in the form reasonably satisfactory to each previously provided to, and approved by, the Administrative Agent;
(f) (i) as soon as available but in any event within 30 twenty (20) days of after the end of each calendar monthmonth following the Effective Date (or, from and after the date on which Aggregate Availability is less than the greater of $12,500,000 and 10% of the Aggregate Commitment (or an Event of Default has occurred and is continuing) and until such subsequent date, if any, on which Aggregate Availability is greater than the greater of $12,500,000 and 10% of the Aggregate Commitment for a period of thirty (30) consecutive calendar days (and no Event of Default then exists), by the Wednesday immediately following the end of each calendar week) and (ii) at such other times as may be necessary to re-determine Aggregate Availability or Availability for any Borrower or as may be reasonably requested by the Administrative Agent, as of the period then ended, a US an Aggregate Borrowing Base Certificate, together with a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK Borrowing Base Certificatefor each Borrower, and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing Base, Canadian Borrowing Base, UAE Aggregate Borrowing Base Certificate, Singapore or the Borrowing Base Certificate or UK Borrowing Base of any Borrower as any the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month and at such other times as may be requested by the Administrative Agentmonth, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing U16 Inventory, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(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;; and
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between (A) 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
above and (vB) a reconciliation the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Aggregate Borrowing Base Certificate and the Borrowing Base Certificate of the loan balance per the Borrowers’ general ledger each Borrower delivered pursuant to the loan balance under this Agreementclause (f) above as of such date;
(h) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrowers’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(i) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month, a report listing all outstanding Swap Obligations as fiscal year of the month then endedCompany, and at such other times as may be requested by the Administrative Agent, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the Borrower Representative;
(j) promptly upon any the Administrative Agent’s reasonable 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 or Equipment purchased by any Loan Party;; and
(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 the Company or any Subsidiary with the Securities and Exchange CommissionSEC, 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 the Company 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
(ol) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the foregoing, upon Company shall be required to provide paper copies of the occurrence and during the continuance compliance certificates required by clause (d) 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, this Section 5.01 to 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers SYX will furnish to the Administrative Agent, Agents and in each Lender each of the case of documents and information required to be delivered by following together with all supporting documentation as the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableAgents may reasonably require:
(a) (i) within 90 91 days after the end of each fiscal year of HoldingsSYX (or, its if the 90th day is not a Business Day, the day immediately succeeding the date on which the filing of such financial statements with the SEC is due), the audited consolidated balance sheet and related statements of operations, partners’ stockholders' equity and cash flows flow as of the end of and for such yearyear of SYX on a Consolidated Basis, 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 reasonably satisfactory to the Required Lenders Administrative Agents (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 SYX on a consolidated basis Consolidated Basis in accordance with US GAAP consistently applied, accompanied by any management letter prepared by said accountants;
accountants (bor, if such management letter is not available at the time of delivery of such financial statements, such management letter shall be promptly provided to the Administrative Agents upon receipt thereof by any Loan Party), (ii) within 45 91 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)SYX (or, commencing with if the fiscal quarter ended June 3090th day is not a Business Day, 2007 (and as to the day immediately succeeding the date on which the filing of such financial statements may be delivered not later than 60 days after with the end of such quarterly periodSEC is due), its consolidated and the unaudited consolidating financial statements of Borrowers on a Consolidated Basis including but not limited to balance sheet and related statements of operations, partners’ stockholders' equity and cash flows flow as of the end of and for such year, setting forth in each case (on a consolidated basis only) in comparative form the figures for the previous fiscal year, all reported on by one of the Financial Officers of SYX to the effect that such consolidating financial statements present fairly in all material respects the financial condition and results of operations of Borrowers on a Consolidated Basis (and a consolidating basis in respect of the Borrowers) in accordance with US GAAP consistently applied and (iii) 180 days after the end of each fiscal year of UK Borrower, the statutory statements as of the end of and for such year of UK Borrower and its Subsidiaries on a consolidated basis, 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 reasonably satisfactory to the Administrative Agents (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 UK Borrower and its Subsidiaries on a consolidated basis in accordance with UK GAAP consistently applied;
(i) the first Business Day after the filing by SYX of its Form 10-Q with respect to the fiscal quarters of SYX ended in March 2005 and June 2005, and within 46 days after each of the fiscal quarters of SYX ending thereafter (or, if the 45th day is not a Business Day, the day immediately succeeding the date on which the filing of such financial statements with the SEC is due), its unaudited balance sheet and related statements of operations, stockholders' equity and cash flow 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings SYX on a Consolidated Basis in accordance with US GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) within 46 days after the end of each of the fiscal quarters of SYX, an unaudited balance sheet of Borrowers on a Consolidated Basis and related statements of operations, stockholders' equity and cash flow 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, all certified by one of the Financial Officers of SYX as presenting fairly in all material respects the financial condition and results of operations of Borrowers on a Consolidated Basis (and a consolidating basis in respect of the Borrowers) in accordance with US GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes and (iii) within 46 days after the end of each of the fiscal quarters of UK Borrower, its unaudited balance sheet and related statements of operations, stockholders' equity and cash flow 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, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of UK Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with UK GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) (i) within 30 40 days after the end of each fiscal month (other than for the thirdof SYX, sixth and ninth month of any fiscal year) (i) of the US Borrower, its consolidated a balance sheet of Borrowers on a Consolidated Basis and related consolidated statements of operations operations, stockholders' equity and a schedule of distributions and Capital Expenditures cash flow 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 year, all certified by one of the Financial Officers of SYX as presenting fairly in all material respects the financial condition and results of operations of Borrowers on a Consolidated Basis (and a consolidating basis in respect of the Borrowers) in accordance with US GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes and (ii) within 40 days after the end of each fiscal month 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 operations, stockholders' equity and a schedule of distributions and Capital Expenditures, cash flow 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of UK Borrower and its Subsidiaries on a consolidated basis and consolidating basis in accordance with UK GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, (x) a certificate of a Financial Officer of the Borrower Representative SYX in substantially the form of Exhibit F D (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 SYX on a consolidated and consolidating basis Consolidated Basis in accordance with applicable GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of Borrowers on a Consolidated Basis and on a consolidating basis with respect to the Borrowers in accordance with applicable GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (iii) 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, (iiiiv) setting forth reasonably detailed calculations demonstrating compliance with Section Sections 6.01, 6.08(b), 6.12, 6.13 and 6.16, and (ivv) in the case of financial statements delivered under clause (a) only, stating whether any change in applicable GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate and (y) a written report summarizing all material variances from budgets submitted by Borrowers pursuant to clause (f) below and a discussion and analysis by management with respect to such variances;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines) and any management letter prepared by said accountants;
(f) as soon as available, but in any event not more than 30 days prior to the end of each fiscal year of each Borrower, SYX (a) a copy quarter-by-quarter projected operating budget and cash flow of Borrowers on a Consolidated Basis and on a consolidating basis with respect to the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower Borrowers for each month of the upcoming such fiscal year (“including an income statement for each quarter and a balance sheet as at the end of each fiscal quarter), and (b) a year-by-year projected operating budget and cash flow of Borrowers on a Consolidated Basis and on a consolidating basis with respect to the Borrowers for such fiscal year and at least two additional years thereafter (including an income statement for each year and a balance sheet as at the end of each fiscal year) (the "Projections”") in form reasonably satisfactory to each Agentthe Administrative Agents, such Projections to be accompanied by a certificate signed by the chief executive officer and/or chief financial officer of SYX to the effect that such projections have been prepared on the basis of sound financial planning practice consistent with past budgets and financial statements and that such officer has no reason to question the reasonableness of any material assumptions on which such projections were prepared;
(fg) as soon as available but in any event within 30 20 days of the end of each calendar month, and at such other times as may be necessary to re-determine availability of Loans hereunder or as may be requested by either Administrative Agent (and in respect of the Administrative AgentUK Borrower, within 3 days of the end of each calendar week), 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 either Administrative Agent may reasonably request;
(gh) as soon as available but in any event within 30 20 days of the end of each calendar month and at such other times as may be requested by the either Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:(not in an Adobe *.pdf file):
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s ' Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agents, together with a summary specifying the name name, address, and balance due for each Account Debtor;
; (ii) a schedule detailing each the US Borrowers’ and each Eligible Subsidiary’s ' Inventory, in form satisfactory to the US Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the US Administrative Agent has previously indicated to the Borrower Representative US Borrowing Agent are deemed by the US Administrative Agent to be appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the US Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by any applicable Borrower and complaints and claims made against the applicable Borrower), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
; (iii) a worksheet of calculations prepared by the Borrowers applicable Borrowing Agent to determine Eligible Domestic Accounts, Eligible UK Accounts and Eligible Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Domestic Accounts, Eligible UK 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;
; and (hvi) as soon as available but in any event within 30 days a schedule and aging of the end of each calendar month (as of the month then ended)Borrowers' accounts payable, an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing Date;text formatted file (not in an Adobe *.pdf file).
(i) within 30 days at the time of the end of each calendar monthany field examination and promptly upon either Administrative Agent's request, a report listing list of all outstanding Swap Obligations as of the month then endedcustomer addresses, delivered electronically in a text formatted file (not in an Adobe *.pdf file);
(j) promptly upon any either Administrative Agent’s 's request:
(i) copies of invoices in connection with the invoices issued by the Borrowers any Borrower 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 or Equipment 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 the Borrowers' sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journaljournal for such period as included in such Administrative Agent's request; and
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. US Internal Revenue Service or the relevant tax authority of any foreign jurisdictionUK Inland Revenue for such period as included in such Administrative Agent's request;
(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;
(mk) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party SYX 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;
(nl) promptly upon the either Administrative Agent's request therefor and thereafter on a daily basis, copies of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower all sales, collection, debit 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 Debtorcredit adjustment schedules; and
(om) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any SubsidiarySubsidiary thereof, or compliance with the terms of this AgreementAgreement or any Loan Document, as either Administrative Agent or any Agent Lender 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.
Appears in 1 contract
Samples: Credit Agreement (Systemax Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, 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 the Borrower 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)Borrower, 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 its 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 the Borrower 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 operations, partners’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower in accordance with GAAP consistently applied, subject to normal periodic and year-end adjustments, including audit adjustments and the absence of footnotes;
(di) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i1) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal periodic and year-end adjustments, including audit adjustments and the absence of footnotes, (ii2) 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, (iii3) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 Sections 6.12 and 6.13, (4) setting forth the detail of amounts due to and due from Integrated and (iv5) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate and (ii) concurrently with any delivery of financial statements under clause (a) or (b) above, management’s discussion and analysis of the items set forth on Exhibit F, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) as soon as available, but in any event not more than 30 days prior to following the end of each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fg) as soon as available but in any event within 30 15 days of the end of each calendar month, within four (4) days of the end of each calendar week at any time that Availability is less than $1,500,000 and at such other times as may be reasonably 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 the Administrative Agent may reasonably request;
(gh) as soon as available but in any event within (x) 15 days, in the case of clauses (i) through (iii), and (y) 30 days days, in the case of clauses (iv) and (v), of the end of each calendar month and at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible SubsidiaryBorrower’s Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiarythe Borrower’s Inventory, in form satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrower and complaints and claims made against the Borrower), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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’ Borrower’s Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible SubsidiaryBorrower’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’ Borrower’s general ledger to the loan balance under this Agreement;
(hi) as soon as available but in any event within 30 15 days of the end of each calendar month (fiscal quarter and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file reasonably acceptable 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 endedAgent;
(j) [intentionally omitted];
(k) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Borrower 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties, including the balance outstanding under the Integrated Note;
(ivl) copies as soon as available but in any event within four (4) days of the end of each calendar week at any time Availability is less than $1,500,000, as of the period then ended, and at such other times as may be requested by the Administrative Agent, as of the period then ended, the Borrower’s and each Eligible Subsidiary’s sales journaldetails, cash receipts journal details (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; anddetails;
(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.
(km) as soon as possible and in any event within 30 15 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 jurisdictionService;
(ln) within 30 days at the time of each March 31 field examination performed pursuant to Section 5.11(b), and September 30at such other times as may be requested by the Administrative Agent, but in no event less frequently than once during the first half of the Borrower’s fiscal year and once during the second half of the Borrower’s fiscal year, (i) an updated customer list for each the 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 BorrowerBorrower and (ii) a copy of such updated customer list delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(mo) within 15 days of the first Business Day of each March and September, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization;
(p) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Borrower 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 the Borrower to its public shareholders partners 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
(oq) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding ; and
(r) within ten (10) Business Days after 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 $10,000,000Effective Date, the Administrative AgentBorrower’s audited balance sheet and related statements of operations, in its sole discretion, may require the delivery partners’ equity and cash flows as of the reportsend of and for the fiscal year ended August 27, certificates 2005, reported on by BDO Xxxxxxx LLP, independent public accountants (without a “going concern”) or like qualification or exception and other documents required by Sections 5.01(f), (g), and (h) (with respect without any qualification or exception as 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 scope of such certificatesaudit) to the effect that such financial statements present fairly in all material respects the financial condition and results of operations of the Borrower in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, and in the case of documents and information required Agent for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or other 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 the Company 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 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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.[Intentionally Omitted];
(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 C (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 the Company 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 of the Fixed Charge Coverage Ratio as of the last day of the most recently ended period of four (4) Fiscal Quarters (provided that the Fixed Charge Coverage Ratio shall only be tested for compliance with Section 6.13 purposes during an FCCR Test Period) 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 referred to in Section 3.04 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 within ninety (90) days prior to after the end of each fiscal year of each Borrowerthe Company, 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”) Company and its Subsidiaries in the form reasonably satisfactory to each previously provided to, and approved by, the Administrative Agent;
(fi) as soon as available but in any event within 30 twenty (20) days after the end of each fiscal quarter following the Effective Date (or, (x) during any Monthly Reporting Period, within twenty (20) days after the end of each calendar monthmonth following the Effective Date or (y) during any Weekly Reporting Period, by the Wednesday immediately following the end of each calendar week) and (ii) at such other times as may be necessary to re-determine Aggregate Availability or Availability for any Borrower or as may be reasonably requested by the Administrative Agent, as of the period then ended, a US an Aggregate Borrowing Base Certificate, together with a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK Borrowing Base Certificatefor each Borrower, and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing Base, Canadian Borrowing Base, UAE Aggregate Borrowing Base Certificate, Singapore or the Borrowing Base Certificate or UK Borrowing Base of any Borrower as any the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 twenty (20) days of the end of each fiscal quarter (or, during any Monthly Reporting Period or Weekly Reporting Period, within twenty (20) days of the end of each calendar month and at such other times as may be requested by the Administrative Agentmonth), as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date terms offered), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing U16 Inventory, Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(iii) if a Monthly Reporting Period or Weekly Reporting Period is then in effect, 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;; and
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between (A) 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
above and (vB) a reconciliation the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Aggregate Borrowing Base Certificate and the Borrowing Base Certificate of the loan balance per the Borrowers’ general ledger each Borrower delivered pursuant to the loan balance under this Agreementclause (f) above as of such date;
(h) as soon as available but in any event within 30 twenty (20) days of the end of each calendar month fiscal quarter (as of the month then ended)or, an accounts payable forecast during any Monthly Reporting Period 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;
Weekly Reporting Period, within twenty (i20) within 30 days of the end of each calendar month) and at such other times as may be requested by the Administrative Agent, a report listing all outstanding Swap Obligations as of the month period then ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file acceptable to the Administrative Agent;
(i) as soon as available but in any event within twenty (20) days of the end of each fiscal year of the Company, and at such other times as may be requested by the Administrative Agent, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the Borrower Representative;
(j) promptly upon any the Administrative Agent’s reasonable 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 or Equipment purchased by any Loan Party;; and
(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 the Company or any Subsidiary with the Securities and Exchange CommissionSEC, 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 the Company 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
(ol) promptly following any request therefor, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party the Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or through Electronic Systems) the Administrative Agent of the filing of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents to it and maintaining its copies of such documents. Notwithstanding anything contained herein, in every instance the foregoing, upon Company shall be required to provide paper copies of the occurrence and during the continuance compliance certificates required by clause (d) 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, this Section 5.01 to 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related consolidated statements of operations, partnersshareholders’ 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 audited by and accompanied by the opinion of Deloitte & Touche LLP or another independent registered public accountants accounting firm of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification qualification, exception or exception emphasis and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and position, results of operations and cash flows of Holdings the Company and its consolidated Subsidiaries as of the end of and for such fiscal year on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(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)Company, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and such fiscal quarter, the related consolidated statements of operations for such fiscal quarter and the then elapsed portion of the fiscal year and the related consolidated statement of 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 (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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and position, results of operations and cash flows of Holdings the Company and its consolidated Subsidiaries as of the end of and for such fiscal quarter and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) during any Enhanced Reporting Period, within 30 20 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 Borrowerfirst two fiscal months of each fiscal quarter of the Company, its the consolidated balance sheet and related consolidated statements of operations and a schedule cash flows of distributions and Capital Expenditures the Company 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 year, all certified by a Financial Officer of the UK Borrower, Company as presenting fairly in all material respects the UAE Borrower financial condition and the Singapore Borrower on an individual (non-consolidated) basis for each such Person, its balance sheet and related statements results of operations of the Company and a schedule of distributions and Capital Expenditures, its consolidated Subsidiaries as of the end of and for such fiscal month and the then elapsed such portion of the fiscal year on a consolidated basis in accordance with GAAP, subject to normal year, setting forth in each case in comparative form -end audit adjustments and the figures for the corresponding period absence of (or, in the case of the balance sheet, as of the end of such period or periods of) the previous fiscal year.footnotes;
(d) concurrently with any each delivery of financial statements under clause (a), (b) or (bc) above, a certificate of completed Compliance Certificate signed by a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Company (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting that such financial statements present fairly in all material respects the financial condition and position, results of operations and cash flows of each Borrower the Company and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-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 6.12, (iv) in the case of financial statements delivered under clause (a) only, stating whether if 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 occurredreferred to in Section 3.04, specifying the effect of such change on the financial statements accompanying such certificate (and, in the event of any such change referred to in Section 1.04(b)(ii), with respect to the amounts included in the calculation of the Fixed Charge Coverage Ratio for the period of four fiscal quarters of the Company then most recently ended, providing a reasonably detailed reconciliation of such amounts as they are reflected in the financial statements accompanying such certificate and as they would be reflected therein without giving effect to such change) and (v) certifying that all notices required to be provided under Sections 5.03 and 5.04 have been provided;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that audited such financial statements stating whether it obtained knowledge during the course of its examination of such financial statements of any Default and, in the case it shall have obtained knowledge of any Default, specifying the details thereof (which certificate may be limited to the extent required by accounting rules or guidelines); provided that such certificate shall not be required to be delivered if the Company has used commercially reasonable efforts to cause such certificate to be delivered by such accounting firm and such accounting firm has informed the Company that it is not willing to provide such certificate;
(ef) within 90 days after the end of each fiscal year of the Company, a completed Supplemental Perfection Certificate, signed by a Financial Officer of the Company, setting forth the information required pursuant to the Supplemental Perfection Certificate;
(g) as soon as available, but in any event not more than 30 within 15 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement of operations and funds flow statementstatement of cash flow) of each Borrower the Company for each month of the upcoming fiscal year (“Projections”) in form reasonably satisfactory to each Agentyear;
(fh) as soon as available but in any event within 30 20 days of the end of (or, during any Enhanced Reporting Period, 3 days) after each calendar monthBorrowing Base Reporting Date, 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 setting forth a UK computation of the Borrowing Base Certificate, and supporting information in connection therewithas of such Borrowing Base Reporting Date, together with supporting information and 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 that the Administrative Agent may reasonably request;
(gi) as soon as available but in any event within 30 20 days of the end of (or, during any Enhanced Reporting Period, 3 days) after each calendar month Borrowing Base Reporting Date, and at such other times as may be requested by the Administrative Agent, the following information as of the period then endedsuch Borrowing Base Reporting Date, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Credit Card Accounts Receivables (A) including all invoices aged aging by due date (with a report of any accounts on greater than 60 day terms) each credit card issuer and credit card processor and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date date, prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and balance due for from each Account Debtorcredit card issuer or credit card processor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by product category type and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 or other results of $50,000 Inventory counts performed by the Loan Parties since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by the Loan Parties), and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Loan Parties to determine Eligible Credit Card Accounts Receivables and Eligible Inventory, such worksheets detailing the Credit Card Accounts Receivables and Inventory excluded from Eligible Credit Card Accounts Receivables and Eligible Inventory and the reason reasons for such exclusion;
(iv) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Credit Card Accounts Receivables and Inventory between the amounts shown in the BorrowersLoan Parties’ 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 BorrowersLoan Parties’ general ledger to the loan balance under this Agreement;
(hj) at any time that any Revolving Loan is outstanding or the LC Exposure is equal to or greater than $100,000,000, as soon as available but in any event within 30 20 days of after the end of each calendar month (and at such other times as may be reasonably requested by the Administrative Agent, a schedule and aging of the Loan Parties’ accounts payable as of the month then ended), an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file reasonably acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(jk) promptly upon any the 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;; and
(iiiii) a schedule detailing the balance of all intercompany accounts of the Loan PartiesCompany and the Subsidiaries;
(ivl) copies of each Borrower’s and each Eligible Subsidiary’s at such other times as may be requested by the Administrative Agent, the Loan Parties’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; andjournal as of the period then ended;
(vm) a detailed listing of all advances of proceeds of Loans at such other times as may be reasonably 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 thereofAdministrative Agent, 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 jurisdictionIRS;
(ln) within 30 20 days after the first Business Day of March of each March 31 and September 30year, an updated customer list a certificate of good standing for each Borrower and from the appropriate governmental officer in its Subsidiariesjurisdiction of incorporation, which list shall state the customer’s nameformation, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borroweror organization;
(mo) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said CommissionSEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be;
(np) promptly after any request therefor by the Administrative Agent, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Loan Parties or any ERISA Affiliate may request with respect to any Multiemployer Plan (following the receipt thereof from the administrator or sponsor of the applicable Multiemployer Plan) and (ii) any notices described in Section 101(l)(1) of ERISA that the Loan Parties or any ERISA Affiliate may request with respect to any Multiemployer Plan (following the receipt thereof from the administrator or sponsor of the applicable Multiemployer Plan); provided that if an ERISA Event has occurred or, in the opinion of the Required Lenders, is reasonably likely to occur, and the Loan Parties or any ERISA Affiliate have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, upon request by the Administrative Agent, the applicable Loan Party or ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices to 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 Debtorpromptly after receipt thereof; and
(oq) promptly following after any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Company or any Subsidiary, or compliance with the terms of this Agreementany Loan Document, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding Information required to be delivered pursuant to clause (a), (b) or (o) of this Section shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the foregoing, upon the occurrence and during the continuance of Administrative Agent on an Event of Default IntraLinks or during any period in similar site to which the aggregate US Availability and Canadian Availability is less than $25,000,000 Lenders have been granted access or UK Availability is less than $10,000,000, shall be available on the website of the SEC at xxxx://xxx.xxx.xxx. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by 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.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Ascena Retail Group, Inc.)
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 applicableeach Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsaccountants provided, that the requirements of this clause (a) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a consolidated annual report for the Company and its Subsidiaries containing the foregoing information on form 10-K in the time period specified above in this clause (a);
(b) within 45 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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, provided, that the requirements of this clause (b) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a quarterly report for the Company and its Subsidiaries containing the foregoing information on form 10-Q in the time period specified above in this clause (b);
(c) within 30 thirty (30) days after the end of each fiscal month of the Company (other than for a month which is also the third, sixth and ninth month end of any a fiscal year) (i) quarter or fiscal year of the US BorrowerCompany), its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures income statement 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., all certified by a Financial Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to quarterly adjustments and entries (consistent with past practices), normal year-end audit adjustments, and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (a “Compliance Certificate”) (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 Sections 6.13 (whether or not a Covenant Testing Trigger Period exists), 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 referred to in Section 3.04 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Anixter or the Borrower, as applicable, will furnish (or will caused to be furnished) 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 ninety (90) days after the end of each fiscal year of HoldingsFiscal Year, its audited on a consolidated basis for AXE, a balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal Year, all reported on by Ernst & Young LLP or other firm of independent public accountants of recognized national standing regularly retained by AXE and reasonably acceptable to the Required Lenders Administrative Agent (without a “going concern” or like qualification qualification, commentary, 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 the Consolidated Group on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) within 45 forty-five (45) days after the end of each Fiscal Quarter (other than the last Fiscal Quarter of the first three fiscal quarters of Holdings (in the case of the fiscal year ending December 31a Fiscal Year, 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 shall be delivered not later than 60 within sixty (60) days after the end of such quarterly periodFiscal Quarter), its on a consolidated and consolidating basis for AXE, a balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearsuch 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)Fiscal Year, all certified by one a Financial Officer of the Financial Officers of the Borrower Representative AXE as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries AXE 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 a Borrowing Base Certificate under clause (f) below or financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative AXE in substantially the form of Exhibit F D (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 AXE 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 Potential Amortization Event or an Amortization Event has occurred and, if a Default Potential Amortization Event or an Amortization Event has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth forth, in the case of each such certificate delivered concurrently with the delivery of financial statements under clauses (a) and (b) above, reasonably detailed calculations demonstrating compliance with Section 6.13 of the financial covenants contained in this Agreement for or as of the end of each Fiscal Quarter then ended (regardless of whether a Financial Covenant Trigger Period is then in effect), and (iv) setting forth, in the case of each such certificate delivered concurrently with the delivery of financial statements under clauses (a) and (b) above (and in the case of each such certificate delivered concurrently with the delivery of a Borrowing Base Certificate under clause (af) only, stating whether below after the end of any change Fiscal Month in GAAP or in the application thereof has occurred since the date which Inventory Facility Availability was less than 50% of the prior fiscal year’s audited financial statements andInventory Facility Commitment), if a reasonably detailed calculation of the Secured Debt-to CTNA Ratio;
(d) as soon as available but in any event within forty-five (45) days after the end of each Fiscal Year and at such change has occurredother times as may be reasonably requested by the Administrative Agent, specifying a Perfection Certificate or a supplement to the effect of such change on the financial statements accompanying such certificatePerfection Certificate;
(e) as soon as available, available but in any event not more no later than 30 ninety (90) days prior to after the end of each fiscal year of each BorrowerFiscal Year, for AXE on a consolidated basis, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower AXE and its Subsidiaries, taken as a whole, for each month of the upcoming fiscal year period of four Fiscal Quarters (the “Projections”) ), all in form customarily prepared by Anixter’s management and reasonably satisfactory to the Administrative Agent, to be accompanied by a certificate of a Financial Officer of Anixter to the effect that such Projections have been prepared on a basis believe by Anixter to be reasonable, which Projections shall include projected Availability, projected Combined Availability, and projected Senior Debt-to-CTNA Ratio for or as of the end of each Agentof the four Fiscal Quarters covered by such Projections;
(f) as soon as available but in any event within 30 thirty (30) days of after the end of each calendar monthFiscal Month (or, during an Enhanced Reporting Trigger Period, weekly, no later than the second Business Day of each week for the prior week), and at such other times as may be necessary to re-determine Availability and/or Combined Availability or as may be reasonably 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 therewiththerewith (including, in respect of any Borrowing Base Certificate delivered for a Fiscal Month which is also the end of any Fiscal Quarter, a calculation of Average Quarterly Combined Availability for such quarter then ended and an indication of what the Applicable Rate is as a result of such Average Quarterly Combined Availability), 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 the Administrative Agent may reasonably request;
(g) as soon as available but in any event within 30 thirty (30) days of after the end of each calendar month Fiscal Month (or, during an Enhanced Reporting Trigger Period, weekly, no later than the second Business Day of each week for the prior week) and at such other times as may be requested by the Administrative Agent, the following as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed summary aging of the Borrowers’ and Eligible SubsidiaryBorrower’s Accounts (A) Receivables, including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day terms) and (B) reconciled the terms offered relating to the applicable Borrowing Base Certificate delivered as number of such days between the invoice date and the due date), prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account DebtorObligor;
(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 Borrower to determine Eligible Accounts and Eligible InventoryReceivables, such worksheets detailing the Accounts and Inventory Receivables excluded from Eligible Accounts and Eligible Inventory Receivables and the reason for such exclusion;
(iviii) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory Borrower’s Receivables between (A) the amounts shown in the Borrowers’ and Eligible SubsidiaryBorrower’s general ledger and financial statements and the reports report delivered pursuant to clauses clause (i) above and (iiB) abovethe amounts and dates shown in the report delivered pursuant to clause (i) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date; and
(viv) a reconciliation of the loan balance per the Borrowers’ Borrower’s general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 thirty (30) days of after the end of each calendar month (Fiscal Month and at such other times as may be reasonably requested by the Administrative Agent, as of the month Fiscal Month (or week, as applicable) then ended), an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file reasonably acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(i) within 30 days as may be reasonably requested by the Administrative Agent, an updated list of Obligors which list shall state the end of each calendar monthObligor’s name, mailing address and phone number, delivered electronically in a report listing all outstanding Swap Obligations text formatted file acceptable to the Administrative Agent and certified as of the month then endedtrue and correct by a Financial Officer;
(j) promptly upon any the Administrative Agent’s reasonable request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Borrower in connection with any AccountsReceivables, credit memos, shipping and delivery documents, and other information related thereto;; and
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of AXE, Anixter, and the Loan PartiesSubsidiaries of Anixter;
(ivk) copies as soon as available but in any event within thirty (30) days after the end of each Borrower’s Fiscal Month (or, during an Enhanced Reporting Trigger Period, weekly, no later than the second Business Day or each week for the prior week) and at such other times as may be requested by the Administrative Agent, as of the period then ended, each Eligible SubsidiaryOriginator’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 AXE or any Subsidiary Anixter with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries AXE 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
(om) promptly following any request therefor, such other information regarding the operations, business affairs and or financial condition of any Loan Party Anixter or any SubsidiarySubsidiary of Anixter, the Collateral, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, Agents and in each Lender each of the case of documents and information required to be delivered by following together with all supporting documentation as the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableAgents may reasonably require:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its the audited consolidated balance sheet and related statements of operations, partners’ stockholders' equity and cash flows flow as of the end of and for such yearyear of the Company on a Consolidated Basis, 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 reasonably satisfactory to the Required Lenders Administrative Agents (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 the Company on a consolidated basis 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' equity and cash flows flow 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 its 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 the Company on a consolidated basis Consolidated Basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 20 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 BorrowerCompany, its a consolidated and consolidating balance sheet of the Company and related consolidated statements of operations operations, stockholders' equity and a schedule of distributions and Capital Expenditures cash flow 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., all certified by one of the Financial Officers of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company on a Consolidated Basis (and a consolidating basis in respect of the Borrowers) in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, (x) a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of each Borrower and its consolidated Subsidiaries the Company on a consolidated Consolidated Basis and on a consolidating basis with respect to the Borrowers in accordance with applicable 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, (iiiiv) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 Sections 6.01, 6.08(b), 6.12 and 6.13, and (ivv) in the case of financial statements delivered under clause (a) only, stating whether any change in applicable GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate and (y) a written report summarizing all material variances from budgets submitted by the Company pursuant to clause (f) below and a discussion and analysis by management with respect to such variances;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines) and any management letter prepared by said accountants;
(f) as soon as available, but in any event not more than 30 days prior to the end of each fiscal year of each Borrower, the Company (a) a copy month-by-month projected operating budget and cash flow of the plan Company on a Consolidated Basis and forecast (including on a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower basis with respect to the Loan Parties for each month of the upcoming such fiscal year (“including an income statement for each quarter and a balance sheet as at the end of each fiscal quarter), and (b) a year-by-year projected operating budget and cash flow of the Company on a Consolidated Basis and on a consolidating basis with respect to the Borrowers for such fiscal year and at least two additional years thereafter (including an income statement for each year and a balance sheet as at the end of each fiscal year) (the "Projections”") in form reasonably satisfactory to each Agentthe Administrative Agents, such Projections to be accompanied by a certificate signed by the chief executive officer and/or chief financial officer of the Company to the effect that such projections have been prepared on the basis of sound financial planning practice consistent with past budgets and financial statements and that such officer has no reason to question the reasonableness of any material assumptions on which such projections were prepared;
(fg) as soon as available but in any event (i) for the first three calendar months ending after the Effective Date, within 30 25 days of after the end of each calendar monthmonth and (ii) thereafter, within 20 days after the end of each calendar month (and, if US Availability shall fall below $15,000,000 at any time, thereafter within 3 days of end of each week), and at such other times as may be necessary to re-determine availability of Loans hereunder or as may be requested by the either 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, Certificates 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 the UK Borrowing Base and the Belgian Borrowing Base as any either Administrative Agent may reasonably request;
(gh) as soon as available but in any event (i) for the first three calendar months ending after the Effective Date, within 30 25 days after the end of each calendar month and (ii) thereafter, within 20 days after the end of each calendar month and at such other times as may be requested by the either Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:(not in an Adobe *.pdf file):
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s ' Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate Certificates delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agents, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule schedules detailing each the US Borrowers’ ' Inventory and each Eligible Subsidiary’s UK Borrowers' Inventory, in form satisfactory to the Administrative AgentAgents, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 Agents deem appropriate, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the US Borrowers and UK Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by any applicable Borrower and complaints and claims made against the applicable Borrower), and (C3) reconciled to the applicable Borrowing Base Certificate Certificates delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers applicable Borrowing Representative to determine Eligible Accounts US Accounts, Eligible US Inventory, M&E Component, Eligible UK Accounts, Eligible UK Inventory and Eligible InventoryBelgian Accounts, such worksheets detailing the Accounts Accounts, Inventory and Inventory Equipment excluded from Eligible Accounts US Accounts, Eligible US Inventory, M&E Component, Eligible UK Accounts, Eligible UK Inventory and Eligible Inventory Belgian Accounts and the reason for such exclusion;
(iv) a reconciliation of the US Borrowers’ ' Accounts' Inventory and Eligible Subsidiaries’ Equipment, UK Borrowers' Accounts and Inventory and Belgian Borrower's Accounts 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;; and
(hvi) as soon as available but in any event within 30 days a schedule and aging of the end of each calendar month (as of the month then ended)Borrowers' accounts payable, an accounts payable forecast or aging consisting of a break down of accounts by due date delivered electronically in a form substantially similar to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing Date;text formatted file (not in an Adobe *.pdf file).
(i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(jvii) promptly upon any either Administrative Agent’s 's request:
(iviii) copies of invoices in connection with the invoices issued by the Borrowers any Borrower in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(iiix) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory or Equipment purchased by any Loan Party;
(iiix) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivxi) copies of each Borrower’s and each Eligible Subsidiary’s the Borrowers' sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journaljournal for such period as included in such Administrative Agent's request; and
(vxii) 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. US Internal Revenue Service Service, the UK Inland Revenue or the relevant Belgian tax authority of any foreign jurisdictionfor such period as included in such Administrative Agent's request;
(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;
(mi) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Company 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 as the case may be including, to the extent not included in the foregoing, any regular periodic and other reports and statements provided by any Loan Party to the holders of the Convertible Notes;
(j) promptly upon either Administrative Agent's request therefor and thereafter on a daily basis, copies of all sales, collection, debit and credit adjustment schedules;
(k) within 20 days after each May 31 and November 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 by a Financial Officer of the Company;
(l) as soon as possible and in any event within ten days after the end of each calendar month, a detailed listing of all advances of proceeds of Loans requested by any 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;
(m) within 20 days after May 31 and November 30, a certificate of good standing for each Loan Party from the appropriate governmental officer in its jurisdiction of incorporation, formation, or its Subsidiaries to its public shareholders generally, as the case may beorganization;
(n) promptly upon as soon as available and in any event within 45 days after the request close of each of the Administrative Agent (fiscal quarters ending June 30, 2006 and September 30, 2006, a written report, in reasonable detail for such applicable period, setting forth the amount of Reimbursable Capital Expenditures made or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower incurred in such period and the Dubai Borrower), but not more than two times in any twelve (12) month amount of casualty and/or business interruption insurance proceeds received during such 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 Borrower or any SubsidiarySubsidiary thereof, or compliance with the terms of this AgreementAgreement or any Loan Document, as either Administrative Agent or any Agent Lender 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and Agent (which shall in the case of documents and information required turn furnish to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:each other Lender Party):
(a) within 90 days after the end of each fiscal year of HoldingsFiscal Year, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such yearFiscal Year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous fiscal yearFiscal Year, all reported on by a “Big Four” accounting firm, or other independent public accountants of recognized national standing and that are reasonably acceptable to the Required Lenders Administrative Agent (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 the Company on a consolidated basis in accordance with GAAP consistently appliedbasis, accompanied by any final management letter prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of Holdings (in Fiscal Quarters, 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 Company’s unaudited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 footnotesFiscal Year;
(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 paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate, (i) certifying, in the case of the financial statements delivered under clause paragraph (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower and its consolidated Subsidiaries the Company on a consolidated and consolidating basis in accordance with GAAP consistently appliedbasis, subject to normal year-end audit adjustments and the absence of footnotes, ; (ii) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event of 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 6.13; and (iv) in the case of financial statements delivered under clause (a) only, stating whether any applicable change in GAAP that has a material effect on any financial statements or in the application thereof has occurred since the later of the date of the audited financial statements referred to in Section 3.04 and the date of the prior fiscal year’s audited financial statements certificate delivered pursuant to this paragraph (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) [Reserved];
(e) as soon as available, but in any event not more than 30 60 days prior to following the end beginning of each fiscal year of each BorrowerFiscal Year, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement of cash flow) of each Borrower the Company for each month quarter of the upcoming fiscal year (“Projections”) Fiscal Year, in form reasonably satisfactory to each the Administrative Agent;
(f) upon the commencement of any Borrowing Base Period and during the continuation thereof, (i) a Borrowing Base Certificate for the most recent fiscal month that ended at least 10 Business Days prior to such date and (ii) thereafter, a Borrowing Base Certificate, as soon as available but in any event within 30 days 10 Business Days after the end of each fiscal month (or, within five Business Days after the end of each calendar monthweek (it being understood that a calendar week ends at midnight on Saturday), during any Weekly Reporting Period), in each case, which calculates the Borrowing Base as of the last day of such fiscal period then ended, together with supporting information in connection therewith and any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request;
(g) in connection with the delivery of any Borrowing Base Certificate required to be delivered pursuant to this Agreement and at such other times as may be reasonably 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 fiscal period then ended, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed summary aging of the Borrowers’ each Borrower’s and Eligible SubsidiaryLoan Guarantor’s Accounts (A) including all based on invoices aged by invoice date and the balance due date (with a report of any accounts on greater than 60 day terms) and (Bfor each Account Debtor) 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 DebtorAgent;
(ii) a schedule detailing each Borrowers’ Borrower’s and each Eligible SubsidiaryLoan Guarantor’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, arrangement or warehouse agreement), by class (work-in-process and finished goods), by product category type and by value volume on hand, which Inventory shall be valued at the lower of weighted-average cost (standard and/or moving average) 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 Inventory aging by fresh plant and prepared foods in excess of $50,000 total, and LOCOM reports to support reserves; 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’ each Borrower’s and Eligible Subsidiaries’ Loan Guarantor’s Accounts and Inventory between the amounts shown in the Borrowers’ each Borrower’s and Eligible SubsidiaryLoan Guarantor’s general ledger and financial statements and the reports delivered pursuant to clauses paragraph (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ each Borrower’s and Loan Guarantor’s 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[Reserved];
(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 periodic reports on Form 10-K, Form 10-Q and Form 8-K that are filed by any Loan Party the Company or any Subsidiary with the Securities and Exchange Commission, SEC 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;
; provided that any documents required to be delivered pursuant to paragraphs (na) promptly upon and (b) and this paragraph (i) shall be deemed to have been delivered on the request of date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet; or (ii) on which such documents are posted on the Company’s behalf on the Platform or another relevant website, if any to which each Lender Party has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); and provided, further, that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent (or of the Singapore posting of any such documents and provide to the Administrative Agent or the UAE Administrative agent with respect to Account Debtors by electronic mail electronic versions (i.e., soft copies) 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 Debtorsuch documents; and
(oj) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent other Lender Party 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableLender:
(a) within 90 95 days after the end of each fiscal year of Holdingsthe Borrower, (i) its audited consolidated balance sheet and related consolidated statements of operations, partnersstockholders’ 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 the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsaccountants and (ii) its unaudited consolidating balance sheets and related statements of operations, stockholders’ 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 certified by one of the Financial Officers of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to the absence of footnotes;
(b) within 45 50 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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 C (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 the 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 whether, to his knowledge, a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, 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 Sections 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 referred to in Section 3.04 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.
Appears in 1 contract
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 Agenteach Lender, as applicableincluding their Public-Xxxxxx:
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 qualification, commentary or exception 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 the Company 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 forty-five (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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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 [intentionally omitted];
(d) The Company represents and warrants that it, its controlling Person and any Subsidiary, in each fiscal month (other than for the thirdcase, sixth and ninth month of any fiscal year) if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the US BorrowerCompany hereby (i) authorizes the Administrative Agent to make the financial statements to be provided under Section 5.01(a), its consolidated balance sheet (b) 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 (c) above (collectively or periods of (or, in the case of the balance sheetindividually, as of the end of such period or periods of) context requires, the previous fiscal year “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx and (ii) each agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the UK Borrowerfederal securities laws or that the Company has no outstanding publicly traded securities, including 144A securities. Notwithstanding anything herein to 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 (orcontrary, in no event shall the case of Company request that the balance sheetAdministrative Agent make available to Public-Xxxxxx budgets or any certificates, as of reports or calculations with respect to the end of such period Borrowers’ compliance with the covenants contained herein or periods of) with respect to the previous fiscal yearBorrowing Base.
(de) concurrently with any delivery of financial statements under clause (a) or (b) abovethe Financial Statements, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements Financial Statements delivered under clause (b)) or (c) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 Sections 6.12(a) and (b) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements Financial Statements accompanying such certificate;
(ef) concurrently with any delivery of Financial Statements under clause (a) above, a certificate of the accounting firm that reported on such Financial Statements stating whether they obtained knowledge during the course of their examination of such Financial Statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(g) as soon as available, but in any event not more no later than 30 45 days prior to after the end of each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each the Borrower for each month of the upcoming then-current fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fh) as soon as available but in any event within 30 20 days of the end of each calendar monthmonth during the Formula-Based Period, 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 the Administrative 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 ten (10) days after the end of filing thereofeach quarter, copies a detailed listing of all tax returns filed intercompany loans, if any, made by the Borrower to any Loan Party with the U.S. Internal Revenue Service or the relevant tax authority of any foreign jurisdictionAffiliate during such quarter;
(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;
(mj) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Borrower 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
(ok) promptly following any request therefor, such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default or during ; and
(l) promptly after 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, request therefor by the Administrative AgentAgent or any Lender, copies of (i) any documents described in its sole discretion, Section 101(k)(1) of ERISA that the Company or any ERISA Affiliate may require the delivery of the reports, certificates and other documents required by Sections 5.01(f), (g), and (h) (request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the US Borrowers, UK Borrower Company or Canadian Borrower) more frequently than monthly, including weekly any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Company or daily, in which event, in any ERISA Affiliate has not requested such documents or notices from the case administrator or sponsor of Borrowing Base Certificatesthe applicable Multiemployer Plan, the Company or the applicable Borrowing Base would be adjusted immediately upon receipt ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such certificatesdocuments and notices promptly after receipt thereof.
Appears in 1 contract
Samples: Credit Agreement (MeetMe, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers Company will furnish to the Administrative Agent, and in the case of documents and Agent (which will promptly furnish such 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:Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operationsearnings, partnersshareholders’ 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 PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and acceptable (whose opinion shall not be qualified as to the Required Lenders (without a “going concern” scope of audit or like qualification or exception and without any qualification or exception as to the scope status of such auditthe Company and its consolidated Subsidiaries as a going concern) to the effect that such consolidated financial statements present fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(b) within 45 forty-five (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)Company, its consolidated and consolidating balance sheet and related statements of operationsearnings, partnersshareholders’ 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 its Financial Officers of the Borrower Representative as presenting fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 thirty (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 Borrowerfirst two fiscal months of each fiscal quarter of the Company, its consolidated balance sheet and related consolidated statements of operations earnings and a schedule of distributions and Capital Expenditures cash flows 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 of) the corresponding 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (i) certifying, in the case certifying that no Event 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 or Default has occurred and, if a an Event of Default or Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) forth, in the case of the financial statements delivered under clause (a) onlyor (b), stating reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not a Trigger Event then exists) as of the end of the period to which such financial statements relate, (iii) describing in reasonable detail such information with respect to Permitted Acquisitions consummated during the preceding fiscal quarter as the Agent may reasonably require, to the extent such information has not previously been supplied to the Agent hereunder, (iv) certifying as to the calculations and basis, in reasonable detail, of any change in GAAP or cost savings added back to EBITDA pursuant to the provisions of clause (a)(xii) of the definition thereof), and (v) certifying, in the application thereof has occurred since the date case 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 delivered under clause (a), a list of names of all Immaterial Subsidiaries (if any) and Unrestricted Subsidiaries (if any), that each Subsidiary set forth on such certificatelist individually qualifies as an Immaterial Subsidiary or Unrestricted Subsidiary, as applicable, and that all Domestic Subsidiaries and Canadian Subsidiaries listed as Immaterial Subsidiaries in the aggregate comprise less than 10% of Total Assets of the Company and the Subsidiaries at the end of the period to which such financial statements relate and represented (on a contribution basis) less than 10% of EBITDA for the period to which such financial statements relate;
(e) as soon as availableconcurrently with any delivery of financial statements under clause (a) above, but in a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any event not more than 30 days prior Event of Default under Section 6.12 (which certificate may be limited to the end extent required by accounting rules or guidelines);
(f) concurrently with any delivery of consolidated financial statements under clause (a) or (b) above, the related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(g) within ninety (90) days after the beginning of each fiscal year of each Borroweryear, a copy detailed consolidated budget of the plan Company and forecast its Subsidiaries by month for such fiscal year (including a projected consolidated balance sheet and consolidating balance sheet, the related consolidated statements of projected cash flows and projected income statement of the Company and funds flow statement) of each Borrower its consolidated Subsidiaries 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 quarter 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 agreementfiscal year), 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;20th day of each fiscal month, a Borrowing Base Certificate as of the close of business on the last day of the immediately preceding fiscal month, together with such supporting information in connection therewith as the Agent may reasonably request, and which may include, without limitation, Inventory reports for each Borrower Group by category and location, together with a reconciliation to the corresponding Borrowing Base Certificate, deliver to the Agent a reasonably detailed calculation of Eligible Tire Inventory, Eligible Non-Tire Inventory, Eligible Receivables and the Value of Inventory for each Borrower Group and a certification by a Responsible Officer of the Company confirming compliance with the permitted indebtedness provisions of Section 4.09(b)(i) of each of the Senior Secured Notes Indenture and the Senior Subordinated Notes Indenture as of the close of business on the last day of the immediately preceding fiscal month; provided that upon the occurrence and during the continuance of a Liquidity Event, the Company shall deliver a Borrowing Base Certificate and such supporting information on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday (or, at any time that an Event of Default exists, more frequently as may be requested by the Agent); provided, further, that immediately prior to any acquisition by any Loan Party of any Person or assets permitted hereunder, all or a portion of the purchase price of which is to be funded by a Revolving Borrowing (including after giving effect to any Revolving Commitment Increase effected in connection therewith), the Company may furnish to the Agent an updated Borrowing Base Certificate that includes the assets to be acquired (including by acquisition of any Person) of any Person that is, or will upon such acquisition become, a Borrower, measured as of the date of the most recent Borrowing Base Certificate previously delivered hereunder, subject, in each case, to the requirements of the last paragraph in Section 6.04.
(i) within 30 days at the Agent’s request, concurrently with the delivery of the end Borrowing Base Certificate, deliver to the Agent a schedule of Inventory for each calendar month, a report listing all outstanding Swap Obligations Borrower Group as of the last Business Day of the immediately preceding month then ended;or week, as applicable, of the Borrowers, itemizing and describing the kind, type and quantity of Inventory, the applicable Borrower’s Cost thereof and the location thereof.
(j) promptly upon any Administrative at the Agent’s request:
, concurrently with the delivery of the Borrowing Base Certificate, thereafter deliver to the Agent a schedule of Receivables for each Borrower Group which (i) copies shall be as of invoices in connection with the invoices issued by last Business Day of the Borrowers in connection with any Accountsimmediately preceding month or week, credit memosas applicable, shipping and delivery documents, and other information related thereto;
(ii) copies shall be reconciled to the Borrowing Base Certificate as of purchase orders, invoicessuch last Business Day, and shipping and delivery documents in connection with any Inventory purchased by any Loan Party;
(iii) shall set forth a schedule detailing the detailed aged trial balance of all intercompany accounts of the Loan Parties;
(iv) copies then existing Receivables of the Borrowers and Canadian Guarantors within each Borrower’s and each Eligible Subsidiary’s sales journalBorrower Group, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; specifying the names, balance due and
(v) a detailed listing , if an Event of all advances of proceeds of Loans requested by Default then exists, the Borrower Representative addresses, for each Borrower during the immediately preceding calendar month and a detailed listing of all intercompany loans made by the Borrowers during such calendar monthAccount Debtor obligated on any Receivable so listed.
(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 publicly 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 CommissionSEC, or with any national securities exchange, or, after an initial public offering of shares of capital stock of Holdings or the Company, distributed by any Loan Party Holdings or its Subsidiaries the Company to its public shareholders generally, as the case may be;
(nl) promptly upon the request of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent not later than any date on which financial statements are delivered with respect to Account Debtors any period in which a Pro Forma Adjustment is made, a certificate of a Responsible Officer of the Singapore Borrower Company setting forth the amount of such Pro Forma Adjustment and, in reasonable detail, the calculations and basis therefor;
(m) promptly following the Dubai Borrower)Agent’s request therefor, but not more than two times all documentation and other information that the Agent reasonably requests on its behalf or on behalf of any Lender in any twelve (12) month periodorder to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, a summary specifying including the name, address and balance due for each Account DebtorPATRIOT Act; and
(on) as promptly as reasonably practicable from time to time following any the Agent’s 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 Agreementany Loan Document, as the Agent (on behalf of any Agent Lender) may reasonably request. Notwithstanding the foregoing, upon the occurrence obligations in clauses (a) and during the continuance (b) 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, this Section 5.01 may require the delivery be satisfied with respect to financial information of the reportsCompany and its Subsidiaries by furnishing (A) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings) or (B) the Company’s or Holdings’ (or any direct or indirect parent thereof), certificates as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and other documents required by Sections 5.01(f(B), (gi) to the extent such information relates to Holdings (or a parent thereof), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such parent), on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand and (hii) (with respect to the US Borrowersextent such information is in lieu of information required to be provided under clause (a) of this Section 5.01, UK Borrower such materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or Canadian Borrowerother independent public accountants of recognized national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be qualified as to the scope of audit or as to the status of Holdings (or such parent) more frequently than monthlyand its consolidated subsidiaries as a going concern. Documents required to be delivered pursuant to clauses (a), including weekly (b) or daily(j) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address provided to the Agent from time to time in writing; or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that: (i) upon written request by the Agent, the Company shall deliver paper copies of such documents to the Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Agent and (ii) the Company shall notify (which may be by facsimile or electronic mail) the Agent of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in which event, in every instance the case Company shall be required to provide paper copies of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt compliance certificates required by clause (d) of such certificatesthis Section 5.01 to the Agent.
Appears in 1 contract
Samples: Credit Agreement (American Tire Distributors Holdings, Inc.)
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 applicableLender:
(a) within 90 120 days after the end of each fiscal year of Holdingsthe Company, if not filed electronically with the SEC and publicly available for retrieval by the Lender after notice from the Company as described below, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Lender (without a “going concern” or like qualification qualification, commentary or exception 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;; provided that notice by the Company to Lender that the Company has filed with the SEC its Form 10-K annual report of the Company for such annual period within such time period shall be deemed to satisfy the requirements of this subsection (a), so long as such financial statements and reports shall be readily available to Lender.
(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 31Company, 2007) and each fiscal quarter for the fiscal year ending December 31, 2008 and each fiscal year of Holdings thereafter), commencing if not filed electronically with the fiscal quarter ended June 30, 2007 (SEC and publicly available for retrieval by the Lender after notice from the Company as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period)described below, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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;; provided that notice by the Company to Lender that the Company has filed with the SEC its Form 10-Q quarterly report of the Company for such quarterly period within such time period shall be deemed to satisfy the requirements of this subsection (b), so long as such financial statements and reports shall be readily available to Lender.
(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) aboveabove (collectively or individually, as the context requires, the “Financial Statements”), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F C (i) certifying, in the case of the financial statements Financial Statements delivered under clause (a) or (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 Sections 6.12, 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements Financial Statements accompanying such certificate;
(d) [reserved];
(e) as soon as available, but in any event not more no later than 30 60 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Lender;
(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 necessary to re-determine Availability hereunder or as may be reasonably requested by the Administrative AgentLender, 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 the Lender 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 reasonably requested by the Administrative AgentLender, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agentthe Lender:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Lender, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative AgentLender, (A1) by location (showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) or market and adjusted for Borrowing Base Reserves as the Administrative Agent Lender has previously indicated to the Borrower Representative are deemed by the Administrative Agent Lender to be appropriate, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to material complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(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 detailed jobs-in-progress report in form and substance reasonably satisfactory to the Lender, including for each contract (1) contract name or number, (2) total value of the contract, (3) amount billed to date, (4) total costs incurred to date, (5) total expected cost, (6) total expected gross profits, and (7) revenue earned to date and total expected revenues;
(h) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between (A) 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
, (vB) a reconciliation of the loan balance per amounts and dates shown in the Borrowers’ general ledger reports delivered pursuant to clauses (i) and (ii) above and the loan balance under this Agreement;
Borrowing Base Certificate delivered pursuant to clause (hg) as soon as available but in any event within 30 days of the end of each calendar month (above 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 Datesuch 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be; provided that prompt notice by the Company to Lender that the Company has filed any such reports, proxy statements or other materials with the SEC or any succeeding Governmental Authority shall be deemed to satisfy the requirements of this subsection (i), so long as such reports, proxy statements or other materials shall be readily available to Lender;
(nj) promptly upon following any request therefor, information and documentation reasonably requested by the request Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower USA PATRIOT Act 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 DebtorBeneficial Ownership Regulation; and
(ok) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any SubsidiaryParty, or compliance with the terms of this Agreement, as any Agent the Lender 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.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, and in the case of documents and Agent (which will promptly furnish such information required to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Collateral Agent and the Singapore Administrative Agent, as applicable:Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related consolidated statements of operations, partners’ equity operations 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 KPMG LLP or other independent public accountants of recognized national standing and reasonably acceptable to the Required Lenders Administrative Agent (it being understood and agreed that any member of the “Big Four” accounting firms is reasonably acceptable to the Administrative Agent for this purpose, and for purposes of all other relevant provisions herein) (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 fairly, in all material respects respects, the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountantsGAAP;
(b) within 45 forty-five (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)Borrower, its consolidated and consolidating balance sheet and related consolidated statements of operations, partners’ equity operations 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 its Financial Officers of the Borrower Representative as presenting fairly fairly, in all material respects respects, the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 thirty-five (35) 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 first two fiscal months of each fiscal quarter of the Borrower, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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 of) the corresponding 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under clause (a) or (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D, (i) certifying, in the case certifying that no Event 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 or Default has occurred andduring the period to which such financial statements relate or, if a an Event of Default or Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) forth, in the case of the financial statements delivered under clause (a) onlyor (b), stating reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether any change in GAAP or not a Liquidity Event then exists) as of the end of the period to which such financial statements relate and (iii) certifying, in the application thereof has occurred since the date case 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 delivered under clause (a), a list of names of all Immaterial Subsidiaries (if any), that each Subsidiary set forth on such certificatelist individually qualifies as an Immaterial Subsidiary and that all Domestic Subsidiaries listed as Immaterial Subsidiaries in the aggregate comprise less than 5% of consolidated total assets of the Borrower and the Subsidiaries at the end of the period to which such financial statements relate and represented (on a contribution basis) less than 5% of EBITDA for the period to which such financial statements relate;
(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) if applicable, concurrently with any delivery of consolidated financial statements under clause (a) or (b) above, the related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(g) within ninety (90) days after the beginning of each fiscal year, (i) a reasonably detailed consolidated budget of the Borrower and its Subsidiaries by month for such fiscal year (including a projected consolidated balance sheet and the related consolidated statements of projected cash flows and projected income, by month) and (ii) an update of the annual projections provided pursuant to Section 4.01(c), including in each case a summary of the underlying material assumptions with respect thereto (collectively, the “Budget”), and, as soon as available, but significant revisions, if any, of such Budget, which Budget or revisions thereto shall in any event not more than 30 days prior each case be accompanied by the statement of a Financial Officer of the Borrower to the end effect that, to the best of each fiscal year of each Borrowerhis knowledge, the Budget is a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower reasonable estimate 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 Agreementcovered thereby;
(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 Date12th Business Day of each fiscal month (or more frequently as the Borrower may elect), a Borrowing Base Certificate as of the close of business on the last day of the immediately preceding fiscal month (or in the case of a voluntary delivery of a Borrowing Base Certificate at the election of the Borrower, a subsequent date), together with such supporting information in connection therewith as the Agents may reasonably request, which may include, without limitation, (i) Inventory reports by category and location (which shall include a calculation of the Inventory Percentage), together with a reconciliation to the corresponding Borrowing Base Certificate, (ii) a reasonably detailed calculation of Eligible Inventory, (iii) a reconciliation of the Loan Parties’ Inventory between the amounts shown in the Borrower’s stock ledger and any Inventory reports delivered pursuant to clause (i) above, (iv) a reasonably detailed calculation of Eligible Credit Card Receivables, and (v) a reasonably detailed aging of the Loan Parties’ Accounts and a reconciliation to the corresponding Borrowing Base Certificate; provided that upon the occurrence and during the continuance of an Event of Default or if a Liquidity Event has occurred and is continuing, the Borrower shall deliver a Borrowing Base Certificate and such supporting information on Wednesday of each week (or if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and provided further, that any Borrowing Base Certificate delivered other than with respect to month’s end may be based on such estimates by the Borrower of Shrink and other amounts as the Borrower may deem necessary;
(i) within 30 days as soon as practicable upon the reasonable request of the end of each Administrative Agent (but no more frequently than once per calendar monthyear), a report listing deliver an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all outstanding Swap Obligations as changes since the date of the month then endedinformation most recently received pursuant to this clause (i) or Section 5.10;
(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 publicly filed by any Loan Party the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said CommissionSEC, or with any national securities exchange, or or, after an initial public offering of shares of capital stock of the Borrower, distributed by any Loan Party or its Subsidiaries the Borrower to its public shareholders generally, as the case may be;
(nk) promptly promptly, a copy of any final “management letter” received from the Borrower’s independent public accountants to the extent such public accountants have consented to the delivery of such management letter to the Agents upon the request of the Borrower;
(l) promptly following the Administrative Agent’s request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(m) promptly following the Administrative Agent’s request therefor, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or the Singapore Administrative Agent or the UAE Administrative agent any of its ERISA Affiliates may request with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Plan or Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the Singapore applicable Plan or Multiemployer Plan prior to the Administrative Agent’s request therefor, Borrower or its ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address shall provide copies of such documents and balance due for each Account Debtornotices promptly after receipt thereof; and
(on) as promptly as reasonably practicable from time to time following any the Administrative Agent’s request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Subsidiary, or compliance with the terms of this Agreementany Loan Document, as any the Administrative Agent may reasonably requestrequest (on behalf of itself or any Lender). Notwithstanding the foregoing, upon the occurrence obligations in clauses (a) and during (b) of this Section 5.01 may be satisfied with respect to financial information of the continuance Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of an Event any direct or indirect parent of Default the Borrower or during (B) the Borrower’s (or any period direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), (i) to the extent such information relates to a direct or indirect parent of the Borrower, such information is accompanied by consolidating information that explains in which reasonable detail the aggregate US Availability differences between the information relating to such parent, on the one hand, and Canadian Availability the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is less than $25,000,000 in lieu of information required to be provided under clause (a) of this Section 5.01, such materials are accompanied by a report and opinion of KPMG LLP or UK Availability is less than $10,000,000, other independent public accountants of recognized national standing and reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in its sole discretion, may require accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the delivery scope of the reports, certificates and other documents such audit. Documents required by Sections 5.01(fto be delivered pursuant to clauses (a), (gb) or (j) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Borrower’s behalf on IntraLinks/SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Borrower hereby acknowledges and agrees that all financial statements and certificates furnished pursuant to paragraphs (a) through (f) of this Section 5.01 are hereby deemed to be Borrower Materials suitable for distribution, and (hto be made available, to Public Lenders as contemplated by Section 9.01(b)(i) (and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance 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 certificatesSection.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableLender:
(a) within 90 120 days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partners’ stockholders' equity and cash flows as of the end of and for such yearyear (with consolidating schedules), setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by the firm of Xxxxx Xxxxxxxx, P.C. or other independent public accountants of recognized national standing and which are acceptable to Lender or certified by the Required Lenders Public Company Accounting Oversight Board (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 the Borrower 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 its Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently 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 D (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 the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently 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 6.12 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 referred to in Section 3.04 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.
(kd) 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 jurisdictionService;
(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;
(me) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental 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 the Borrower 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
(of) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as any Agent Lender 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.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Ernst & Young LLP or another firm of 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)Holdings, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 BorrowerHoldings, its consolidated and consolidating balance sheet and related consolidated statements of operations operations, stockholders’ equity and a schedule of distributions and Capital Expenditures cash flows 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., all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes; provided, however, that such financial statements will only be required from and after the occurrence of an Event of Default or during an Activation Period;
(d) concurrently with any delivery of financial statements under clause clauses (a) or ), (b) and (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (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 Holdings and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments (which individually or in the aggregate will not be material) 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 Sections 6.01, 6.04, 6.05, 6.07, 6.08 and 6.13, in the case of the financial statements delivered under clauses (a) and (b), 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 referred to in Section 3.04 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 after the end of each fiscal year of each BorrowerHoldings, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower Holdings and its consolidated Subsidiaries for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available but in any event within 30 20 days of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, month as of the period then ended, (i) a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and (including a UK Borrowing Base Certificate, “terminal reconciliation report”) and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing BaseBase as the Administrative Agent may reasonably request; and the Fixed Asset Component of the Borrowing Base shall be updated concurrent with the sale or commitment to sell any assets constituting Eligible Equipment or Eligible Real Estate, Canadian Borrowing Base(ii) to the extent there has been a change in the information represented in a previously delivered Perfection Certificate or Perfection Certificate Update or any previously delivered Perfection Certificate or Perfection Certificate Update is no longer accurate and complete, UAE a Perfection Certificate Update, (iii) the PACA Reserve Report in the form of Exhibit I hereto; provided that at any time when an Event of Default has occurred and is continuing or an Activation Period exists, the Administrative Agent, in its sole discretion, may require the delivery of a Borrowing Base Certificate, Singapore Perfection Certificate, PACA Reserve Report and supporting information more often than monthly, including weekly or daily, in which event the Borrowing Base Certificate or UK Borrowing Base as any Agent may reasonably requestwould be adjusted immediately upon receipt of such reports;
(g) as soon as available but in any event within 30 20 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 the Administrative Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each the Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and complaints and claims made against the Borrowers), 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;; provided, that at any time when an Event of Default has occurred and is continuing or an Activation Period exists, the Administrative Agent, in its sole discretion, may require delivery of the information required by this clause (g) more often than monthly, including weekly or daily.
(h) as soon as available but in any event within 30 20 days of the end of each calendar month (and at such other times as may be requested by the Administrative Agent, as of the month then ended), an a schedule and aging of the Borrowers’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(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 the 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 or Equipment 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
(viv) 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;
(lj) within 30 45 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 BorrowerBorrower Representative;
(mk) 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
(ol) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding the foregoing, ; and
(m) promptly notify Administrative Agent upon the occurrence and during adoption of or change in (including, but not limited to, a change in the continuance interpretation or application by any Governmental Authority of) any Requirement of an Event of Default Law in any jurisdiction, any change in the manner or during any period method in which the aggregate US Availability and Canadian Availability is less than $25,000,000 Borrowers sell inventory, or UK Availability is less than $10,000,000any change in the types or mixture of types of inventory sold by the Borrowers which imposes upon the Borrowers any requirement (or increases or makes more burdensome any existing requirement) to collect, the Administrative Agentremit and/or pay motor fuels, in its sole discretion, may require the delivery of the reports, certificates and liquor or other documents required by Sections 5.01(f), (g), and (h) (sales or excise taxes with respect to the US Borrowers, UK Borrower sale by the Borrowers of ethanol 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 certificatesother inventory.
Appears in 1 contract
Samples: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower will furnish to the Administrative Agent, and in the case of documents and information required Agent for prompt delivery to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, its the Borrower’s audited consolidated balance sheet and related audited consolidated statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such year, and related notes thereto, 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 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 the Borrower and its consolidated the 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)the Borrower, 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 Borrower’s unaudited consolidated and consolidating balance sheet and related unaudited consolidated statements of operations, partnersstockholders’ 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower and its consolidated the 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 or deemed delivery of financial statements under clause paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative substantially in substantially the form of Exhibit F E (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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with of the financial covenant (and the components thereof) contained in Section 6.13 6.12 and (iviii) 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 later of the date of the Borrower’s most recent audited financial statements referred to in Section 3.04 and the date of the prior fiscal year’s audited financial statements certificate delivered pursuant to this paragraph (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) as soon as available, but in any event not more later than 30 90 days prior subsequent to the end commencement of each fiscal year of each the Borrower, a copy of the plan and forecast detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and consolidating balance sheetconsolidated statements of projected operations, comprehensive income statement and funds flow statement) of each Borrower for each month cash flows as of the upcoming end of and for such fiscal year (“Projections”and setting forth the assumptions used for purposes of preparing such budget) in form reasonably satisfactory to each Agentand, promptly when available, any significant revisions of such budget;
(fe) as soon as available but in any event within 30 days 13 Business 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 endedlast day of the preceding calendar month, 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 BaseBase as the Administrative Agent may reasonably request. Notwithstanding any provision of this Agreement to the contrary, Canadian subsequent to each date on which Excess Availability is less than the Threshold Amount (or if a Borrowing Baseor the issuance of a Letter of Credit would cause Excess Availability to fall below the Threshold Amount), UAE the Borrower shall not be permitted to make any additional Borrowings or such Borrowing or request the issuance of additional Letters of Credit or such Letter of Credit, as the case may be (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this sentence), unless the Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate as of a date no earlier than three Business Days prior to the date of such Borrowing or the issuance of such Letter of Credit; provided, however, the Borrower shall not be required to deliver a Borrowing Base Certificate pursuant to the second sentence of this paragraph if Excess Availability shall have exceeded the Threshold Amount for a period of five consecutive Business Days prior to the date of such Borrowing or the issuance of such Letter of Credit;
(f) concurrently with the delivery of each 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 reasonably 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 Supplemental Documentation for 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 (or such shorter period as contemplated by clause (e) 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;
(ithis Section) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(jg) promptly upon any Administrative Agent’s request:
(i) copies as reasonably practicable after the request therefor, such additional information concerning the Accounts and Inventory of invoices in connection with the invoices issued Collateral Parties or adjustments thereto as may be reasonably requested by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related theretoAdministrative Agent from time to time;
(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;
(mh) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, SEC or with any national securities exchange, or distributed by any Loan Party or the Borrower to the holders of its Subsidiaries to its public shareholders Equity Interests generally, as the case may be;
(ni) promptly upon obtaining knowledge of any such event, circumstance or change, a written notice of any event, circumstance or change that has occurred since the request delivery of the Administrative Agent (most recent Borrowing Base Certificate in accordance with the terms of this Agreement that would materially reduce the aggregate amount of the Eligible Accounts or the Singapore Administrative Agent Eligible Inventory or the UAE Administrative agent with respect to Account Debtors result in a material portion of the Singapore Borrower and Eligible Accounts ceasing to be Eligible Accounts or a material portion of 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 DebtorEligible Inventory ceasing to be Eligible Inventory; and
(oj) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower or any Subsidiary, or compliance with the terms of this Agreementany Loan Document, as the Administrative Agent (on behalf of any Agent Lender) 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 Information required by to be delivered pursuant to Sections 5.01(f5.01(a), (g), b) and (h) (with respect shall be deemed to have been delivered on the date on which the Borrower provides notice to the US BorrowersAdministrative Agent that such information has been posted on the SEC website on the Internet at xxx.xxx.xxx, UK Borrower or Canadian through a link on the Borrower) more frequently than monthly’s website at xxx.xxx.xxx, including weekly or dailyat another website identified in such notice and accessible by the Lenders without charge, provided that such notice may be included in which event, in the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificatesa certificate delivered pursuant to Section 5.01(c).
Appears in 1 contract
Samples: Credit Agreement (Usg Corp)
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower 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 applicableLender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Borrower, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 BDO USA, LLP or other independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification qualification, commentary or exception 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 the Borrower 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)Borrower, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officers of the Borrower Representative Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings the Borrower 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) aboveabove (collectively or individually, as the context requires, the “Financial Statements”), a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F D (i) certifying, in the case of the financial statements Financial Statements delivered under clause (b)) above, as presenting fairly in all material respects the financial condition and results of operations of each the 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 6.12 and, concurrently with the case delivery of financial statements delivered Financial Statements under clause (a) onlyabove, Sections 6.04(c)(ii), 6.04(d)(ii) and 6.04(e)(ii), and (iv) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements Financial Statements accompanying such certificate;
(d) concurrently with any delivery of Financial Statements under clause (a) above, a certificate of the accounting firm that reported on such Financial Statements stating whether they obtained knowledge during the course of their examination of such Financial Statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, but in any event not more no later than 30 120 days prior to after the end of each fiscal year of each the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each the Borrower for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Lender;
(f) as soon as available but in any event within 30 20 days of the end of each calendar month, and at such other times as may be requested by the Administrative AgentLender, 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 the Lender may reasonably request;
(g) as soon as available but in any event within 30 20 days of the end of each calendar month month, and at such other time or times as may be requested by the Administrative AgentLender, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file format acceptable to each Agentthe Lender:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Borrower's Accounts (A1) including all invoices aged by invoice date and due date (with a report an explanation of any accounts on greater than 60 day termsthe terms offered) and (B2) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent Lender, together with a summary specifying the name name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiary’s the Borrower's Inventory, in form satisfactory to the Administrative AgentLender, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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 appropriatemarket, (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrower since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrower and complaints and claims made against the Borrower), and (C3) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers Borrower 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;; and
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Borrower's Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible Subsidiary’s Borrower'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) at such time or times as soon as available but in any event within 30 days of may be reasonably requested by the end of each calendar month (Lender, as of the month then ended)period so requested, an a schedule and aging of the Borrower’s accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered in a form substantially similar format acceptable to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing DateLender;
(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 Agentthe Lender’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Borrower 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 or Equipment purchased by any Loan Party;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivj) copies of each at such time or times as may be reasonably requested by the Lender, the 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 thereofpromptly upon the Lender’s reasonable request, 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 jurisdictionService;
(l) within 30 days of each March 31 and September 30at such time or times as may be requested by the Lender, an updated a current customer list for each the 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, 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;; and
(n) promptly upon after any request therefor by the Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any ERISA Affiliate may request of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor 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 $10,000,000applicable Multiemployer Plan, the Administrative Agent, in its sole discretion, may require Borrower or the delivery applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of the reports, certificates such documents and other documents notices promptly after receipt thereof. Information or financial statements required by Sections 5.01(fto be delivered pursuant to clauses (a), (g), b) or (m) of this Section 5.01 shall be deemed to have been delivered if such information or financial statements are available on the SEC’s website at xxxx://xxx.xxx.xxx 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 has notified Lender of the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt posting of such certificatesdocument.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers Borrower Representative will furnish to the Administrative Agent, and in the case of documents and information required for distribution to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicableeach Lender:
(a) within 90 days after the end of each fiscal year of Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants; provided that the requirements of this clause (a) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a consolidated annual report for the Company and its Subsidiaries containing the foregoing information on form 10-K in the time period specified above in this clause (a);
(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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such 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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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; provided that the requirements of this clause (b) shall be deemed to have been satisfied if the Administrative Agent has been furnished with a quarterly report for the Company and its Subsidiaries containing the foregoing information on form 10-Q in the time period specified above in this clause (b);
(c) During any Increased Reporting Period, 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 BorrowerCompany, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures cash flows 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., all certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company 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;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (bc) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F Compliance Certificate, which shall (i) certifying, in when delivered concurrently with the case delivery of the financial statements delivered under clause (b) or (c), as presenting certify that such financial statements present fairly in all material respects the financial condition and results of operations of each Borrower the Company 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 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, (iii) setting set forth reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.13 6.12, and (iv) in the case of financial statements delivered under clause (a) only, stating state whether any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (v) describe whether, since the later of the Effective Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) change its organization identification number, if any, issued by its state or province of incorporation or other organization, or (E) changed its state or province of incorporation or organization;
(e) as soon as available, but in any event not more [Reserved];
(f) no later than 30 60 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of each Borrower the Company for each month quarter of the upcoming such fiscal year (the “Projections”) in form reasonably satisfactory to each Agentthe Administrative Agent (it being understood that the Company’s customary format consistent with the format delivered to the Administrative Agent in connection with the Effective Date will be satisfactory);
(fg) as soon as available but in any event within 30 days on or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, Borrowing Base as of the period then endedmost recently ended fiscal quarter, a US fiscal month or week, as applicable, to which such 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 therewithReporting Date relates, together with supporting information and 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 that the Administrative Agent may reasonably request; and the Real Property Component of the Borrowing Base shall be updated immediately upon any Real Estate ceasing to be Eligible Real Property;
(gh) as soon as available but in any event within 30 days of on or before each Borrowing Base Reporting Date, the end of each calendar month and at such other times as may be requested by the Administrative Agent, following information as of the period then endedmost recently ended fiscal quarter, fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text or Microsoft Excel formatted file in form reasonably acceptable to each the Administrative Agent:
(i) (A) to the extent Eligible Trade Accounts are included in the Borrowing Base as of such date, a reasonably detailed aging of the BorrowersLoan Parties’ 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 Accounts, in a manner form reasonably acceptable to the Administrative Agent together with Agent, and (B) a summary specifying reasonably detailed aging of the name and balance due for each Account DebtorLoan Parties’ Credit Card Accounts, in a form reasonably acceptable to the Administrative Agent;
(ii) a schedule detailing each Borrowersthe Loan Parties’ 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 Loan Parties to determine Eligible Credit Card Accounts, Eligible Trade Accounts and Eligible Inventory, such worksheets detailing the Credit Card Accounts, Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the BorrowersLoan Parties’ and Eligible Subsidiaries’ Credit Card Accounts, Accounts and Inventory between (A) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; andabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(v) if there are Eligible Trade Accounts included in the Borrowing Base, a reconciliation schedule of the loan balance per the BorrowersLoan Parties’ 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 (accounts payable as of the month then ended), an accounts payable forecast or aging consisting of delivered electronically in a break down of accounts by due date text formatted file in a form substantially similar reasonably acceptable to the form of accounts payable forecast provided Administrative Agent; and
(vi) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request.
(vii) concurrent with any field exam permitted under Section 5.06 (or at such other times as agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide notice to the Administrative Agent on of any removal or prior addition of any credit card issuer or credit card processor to the Closing Dateextent that (i) in the case of a removal, Credit Card Accounts of such credit card issuer or credit card processor were included in any previous Borrowing Base or (ii) in the case of an addition, the Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit card processor in the Borrowing Base, and concurrently with any such notice of an addition, the Company shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor, (B) a true and complete copy of each Credit Card Agreement with respect thereto, together with all material amendments, waivers and other modifications thereto, and (C) such other information with respect thereto as may be reasonably requested by the Administrative Agent; for the avoidance of doubt, unless otherwise agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card processor may be included in the Borrowing Base until a field exam with respect thereto has been completed;
(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 the Company or any Subsidiary with the Securities and Exchange Commission, SEC or any Governmental Authority succeeding to any Canadian federal or all of the functions of said Commissionprovincial securities commission, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries the Company to its public shareholders generally, as the case may be;
(nA) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan and is eligible to request such documents or notices, the applicable Loan Party or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof and (B) promptly after the filing thereof with any Governmental Authority, a copy of each actuarial valuation report and, upon the request of the Administrative Agent Agent, Annual Information Return in respect of any Canadian Benefit Plan (other than a Canadian MEPP) or a Canadian Pension Plan;
(i) where an actuarial report on a Canadian Defined Benefit Plan discloses a solvency or wind-up deficiency, on a quarterly basis thereafter whenever and for so long as a solvency or wind-up deficiency exists promptly following the end of each fiscal quarter of a Canadian Borrower, a summary actuarial update for such Canadian Defined Benefit Plan, which summary update shall reflect the updated value of the assets of the Canadian Defined Benefit Plan and discount rates at the end of the quarter to which the summary relates but otherwise utilizing the facts and assumptions set forth in the most recently delivered actuarial report, and (ii) when requested by the Administrative Agent, the most recent defined benefit Canadian Defined Benefit Plan financial statements;
(l) within five (5) Business Days after a Responsible Officer of the Borrower Representative has knowledge of the production or the Singapore receipt by a Loan Party thereof, copies of (i) any material environmental reports produced by or on behalf of any Loan Party or Restricted Subsidiary or (ii) any notice received or sent by any Loan Party or Restricted Subsidiary with respect to the Specified Environmental Order;
(m) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the UAE Administrative agent with respect to Account Debtors USA PATRIOT Act, Proceeds of the Singapore Borrower Crime Act 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; andBeneficial Ownership Regulation;
(on) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Agent Lender may reasonably request. Notwithstanding The Borrower Representative shall be deemed to have furnished to the foregoingAdministrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.01(j) upon (i) the filing of such financial statements or material by the Company through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the Company of such financial statements on its website, upon so long as such system or website is publicly available; provided that, at the occurrence and during request of the continuance of an Event of Default Administrative Agent 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 $10,000,000Lender, 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 Representative shall promptly deliver electronic 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 paper copies of such certificatesfilings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 in accordance with then applicable law and not later than ninety (90) days after the end of each fiscal year of Holdingsthe Company, its itsthe Company’s audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Ernst & Young LLP or other 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 the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by ; provided that the Borrowers shall be deemed to have furnished said accountantsannual audited financial statements for purposes of this Section 5.01(a) if the same shall have timely been made available on “XXXXX” and the Borrowers shall have complied with Section 5.01(l) in respect thereof;
(b) within 45 in accordance with then applicable law and not later than forty-five (45) days after the end of each fiscal quarter 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partners’ stockholders' 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 a Financial Officer of the Financial Officers of the Borrower Representative Company as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company 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; provided that the Borrowers shall be deemed to have furnished said annual auditedquarterly financial statements for purposes of this Section 5.01(b) if the same shall have timely been made available on “XXXXX” and the Borrowers shall have complied with Section 5.01(l) in respect thereof;
(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, (i) a schedule or report, in form and substance reasonably satisfactory to the Administrative Agent, detailing the financial condition and results of operations of the Company and its Restricted Subsidiaries after eliminating the assets, liabilities and results of operations of Compressco and (bii) a compliance certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit F C (iA) certifying, in the case of the financial statements delivered under clause (b), as presenting that such statements present fairly in all material respects the financial condition and results of operations of each Borrower the Company 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, (iiB) 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, (iiiC) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 of the Fixed Charge Coverage Ratio for the fiscal quarter most recently ended and an indication of the Applicable Rate as a result of such calculation, (ivD) 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 most recently delivered pursuant to clause (a) above and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate and (vE) certifying that the schedule or report delivered pursuant to clause (i) above is true and correct in all material respects;
(ed) as soon as available, but in any event not more than 30 within ninety (90) days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of (commencing with 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 ending December 31, 2018), its internally-prepared consolidating financial statements reconciling the financial condition of the end of each calendar monthits Restricted Subsidiaries and Unrestricted Subsidiaries, 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 format 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 Company as presenting fairly in all material respects the same become publicly available, copies financial condition and results 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 operations of the functions of said Commission, or with any national securities exchange, or distributed by any Loan Party or its Restricted Subsidiaries to its public shareholders generally, as the case may be;
(n) promptly upon the request and Unrestricted Subsidiaries of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent Company in accordance 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.GAAP;
Appears in 1 contract
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 applicableeach Lender:
(a) within 90 120 days after the end of each fiscal year Fiscal Year of Holdingsthe U.S. Borrower (or, if earlier, the date provided to the holders of the U.S. Borrower’s equity or debt securities generally), its audited consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 yearFiscal 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 the U.S. Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied . The U.S. Borrower shall be deemed to have delivered the financial statements required to be delivered pursuant to this Section 5.01(a) upon the filing of such financial statements by the U.S. Borrower through the SEC’s XXXXX system (or any management letter prepared successor electronic gathering system) or the publication by said accountantsthe U.S. Borrower of such financial statements on its website;
(b) (i) within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of Holdings (in the case each Fiscal Year of the fiscal year ending December 31U.S. Borrower, 2007its consolidated and consolidating balance sheet (including a summary of stockholders’ equity as customarily shown on a balance sheet) and each fiscal quarter for related statements of operations and cash flows, and, (ii) if Availability during any Fiscal Month is at any time less than the fiscal year ending December 31Minimum Excess Availability Amount, 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 within 30 days after the end of such quarterly period)Fiscal Month, its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows in each case, as of the end of and for such fiscal quarter Fiscal Quarter or Fiscal Month, as the case may be, and the then elapsed portion of the fiscal yearsuch 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)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 the U.S. Borrower 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 footnotesfootnotes (it being acknowledged and agreed that such quarterly and monthly financial statements will not be subsequently audited on a quarterly or monthly basis). The U.S. Borrower shall be deemed to have delivered the financial statements required to be delivered pursuant to this Section 5.01(b) upon the filing of such financial statements by the U.S. Borrower through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the U.S. Borrower of such financial statements on its website;
(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 D (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 the U.S. 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 footnotesfootnotes (it being acknowledged and agreed that such quarterly and monthly financial statements will not be subsequently audited on a quarterly or monthly basis), (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 6.14 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) as soon as available, available but in any event not more no later than 30 60 days prior to following the end commencement of each fiscal year Fiscal Year of each the U.S. Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each the U.S. Borrower for each month of the upcoming fiscal year Fiscal Year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(fe) as soon as available but in any event within 30 20 days of the end of each calendar monthFiscal Quarter, and at such other times as may be necessary to redetermine availability of Loans and Letters of Credit to either Borrower hereunder or 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 which calculates the U.S. Borrowing Base Certificateand the Canadian Borrowing Base, and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing Base, Canadian Borrowing Base, UAE either such Borrowing Base Certificateas the Administrative Agent may reasonably request; provided that, Singapore the Borrowing Base Certificates will also be (i) prepared as of the last day of each Fiscal Month of the U.S. Borrower (x) during any period commencing when the aggregate Dollar Amount of Outstanding Loans exceeds $250,000,000 at any time and ending at such time as the aggregate Dollar Amount of Outstanding Loans has been less than or equal to $250,000,000 for 30 consecutive days and (y) after the Trademark Release Date has occurred, during any period commencing when Availability is less than $400,000,000 at any time and ending at such time as the aggregate Availability has been greater than or equal to $400,000,000 for 30 consecutive days and (ii) prepared as of the last day of each fiscal week of the U.S. Borrower during any period commencing on the date that Availability is less than the Minimum Excess Availability Amount for five consecutive Business Days and continuing until such time as Availability is no longer less than the Minimum Excess Availability Amount for five consecutive Business Days. If the Borrowers are required to deliver a monthly Borrowing Base Certificate or UK weekly Borrowing Base Certificate as any Agent may reasonably requesta result of the proviso to the foregoing sentence, such Borrowing Base Certificate shall be delivered (i) no later than seven Business Days after the date the obligation to deliver such Borrowing Base Certificate arises (in the case of monthly Borrowing Base Certificates) based on the most recent Fiscal Month ended at least 20 days prior to such date of delivery and thereafter no later than the 20th day following the last day of each subsequent Fiscal Month ending during the period when monthly Borrowing Base Certificates are required to be delivered and (ii) no later than three Business Days after the date the obligation to deliver such Borrowing Base Certificate arises (in the case of weekly Borrowing Base Certificates) based on the most recent fiscal week ended at least three Business Days prior to such date of delivery and thereafter no later the third Business Day following the last day of each subsequent fiscal week ending during the period when weekly Borrowing Base Certificates are required to be delivered;
(gf) as soon as available but in any event within 30 days of concurrently with the end delivery of each calendar month and at such other times as may be requested by the Administrative AgentBorrowing Base Certificate pursuant to paragraph (e) above, as of the period then endedcovered thereby, all delivered electronically in a text or Microsoft Excel formatted file reasonably acceptable to each the Administrative Agent:
(i) a detailed aging of the BorrowersLoan Parties’ and Eligible Subsidiary’s Accounts (A) Accounts, including all invoices aged by invoice date and 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 date, prepared in a manner reasonably acceptable to the Administrative Agent Agent, together with a summary specifying the name and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowersthe Loan Parties’ and each Eligible Subsidiary’s Inventory, in form reasonably satisfactory to the Administrative Agent, (A1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product category type, and by value volume on hand, which Inventory shall be valued at the lower of weightedcost (determined on a first-average cost in, first-out basis) 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, and (B2) including a report of any variances in excess or other results of $50,000 Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and (C) reconciled to complaints and claims made against the applicable Borrowing Base Certificate delivered as of such dateBorrowers);
(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 SubsidiariesLoan Parties’ Accounts and Inventory between (A) the amounts shown in the BorrowersLoan Parties’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) aboveabove and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (f) above as of such date; and
(v) a reconciliation of the loan balance per the BorrowersLoan Parties’ general ledger to the loan balance under this Agreement;
(g) upon the request of the Administrative Agent during any period when the Borrowers are required to deliver weekly Borrowing Base Certificates, the Loan Parties’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal;
(h) as soon as available but in concurrently with the delivery of any event within 30 days of the end of each calendar month Borrowing Base Certificate pursuant to paragraph (e) above, as of the month then ended)period covered thereby, an a schedule and aging of the Loan Parties’ accounts payable forecast or aging consisting of a break down of accounts by due date payable, delivered electronically in a form substantially similar to the form of accounts payable forecast provided text formatted file reasonably acceptable to the Administrative Agent on or prior to the Closing DateAgent;
(i) 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 end of each calendar monthcustomer’s name, mailing address and phone number, delivered electronically in a report listing all outstanding Swap Obligations text formatted file reasonably acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the month then endedBorrower Representative;
(j) promptly upon any the Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers Loan Parties 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;; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(ivk) copies promptly after the filing thereof with any Governmental Authority, a copy of each Borrower’s and each Eligible Subsidiary’s sales journalactuarial valuation report and, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and
(v) a detailed listing upon request 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 Multicurrency Administrative Agent, Annual Information Return 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 respect of any foreign jurisdictionCanadian Pension Plan;
(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 Borrower or any Subsidiary with the Securities and Exchange Commissionany U.S. or Canadian federal or provincial securities 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 Borrower to its public shareholders generally, as the case may be. The applicable Borrower shall be deemed to have delivered the reports, statements and other materials required to be delivered pursuant to this Section 5.01(l) upon the filing of such reports, statements and other materials by the applicable Borrower through the SEC’s XXXXX system (or any successor electronic gathering system) or the publication by the applicable Borrower of such reports, statements and other materials on its website;
(nm) promptly upon following the request Disposition of accounts receivable and other payment obligations in the ordinary course pursuant to Section 6.05(g), written notice to 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 regarding such Dispositions including reasonably detailed information regarding each Account Debtorsuch Disposition; and
(on) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party Borrower 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, the Multicurrency Administrative Agent or any Lender 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 certificatesreasonably request.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required Agent (with copies to be delivered provided to each Lender 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 Holdingsthe Company, its audited consolidated balance sheet and related statements of operations, partnersstockholders’ 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 Deloitte & Touche LLP or another registered public accountants accounting firm 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 the Company and its consolidated Subsidiaries 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)Company, its consolidated and consolidating balance sheet and related statements of operations, partnersstockholders’ 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 a Financial Officers Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings the Company and its consolidated Subsidiaries 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 C (each, a “Compliance Certificate”) (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 the Company and its consolidated Subsidiaries 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 6.15 (to the extent applicable) 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 referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available, but in any event not more than 30 days prior to after the end of each fiscal year of each Borrowerthe Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statementstatement in form acceptable to the Administrative Agent) of each Borrower the Company for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to each the Administrative Agent;
(f) as soon as available available, but in any event within 30 days 15 Business Days of the end of each calendar quarter (or (i) within 15 Business Days of the end of each month for which, at any time during such month, there were Loans outstanding or the LC Exposure was in excess of $200,000,000 and at such other times as may be requested by the Administrative Agent, as (ii) within three Business Days of the period then endedend of each week at any time during a Level 3 Minimum Aggregate Availability Period), an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a UK Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Puerto Rican Borrowing Base Certificate and a UK Dutch Borrowing Base Certificate, in each case which calculates such Borrowing Base, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, the UK Borrowing Base, the Canadian Borrowing Base, UAE the Puerto Rican Borrowing Base or the Dutch Borrowing Base of a Borrower as the Administrative Agent or either Collateral Agent may reasonably request; provided that no UK Borrowing Base Certificate, Singapore Canadian Borrowing Base Certificate, Puerto Rican Borrowing Base Certificate or UK Dutch Borrowing Base as any Agent may reasonably requestCertificate or additional reports with respect thereto shall be required under this clause (f) if the European Sublimit shall have been terminated;
(g) as soon as available but in any event within 30 days 15 Business Days of the end of each calendar quarter (or (i) within 15 Business Days of the end of each month for which, at any time during such month, there were Loans outstanding or the LC Exposure was in excess of $200,000,000 and (ii), within three Business Days of the end of each week at any time during a Xxxxx 0 Xxxxxxx Xxxxxxxxx Availability Period) and at such other times as may be reasonably requested by the Administrative Agent or either Collateral Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:Borrowing Base Supplemental Documentation.
(h) (i) at any time that (x) a detailed aging Letter of Credit is issued or amended such that after such issuance or amendment the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by due date (with outstanding LC Exposure exceeds $200,000,000 or a report of any accounts on greater than 60 day terms) Revolving Loan or Swingline Loan is made and (By) reconciled to the applicable a Borrowing Base Certificate delivered and related reporting has not been provided as of the last day of the month most recently ended at least 15 Business Days prior to such date prepared in a manner reasonably acceptable extension of credit, the Borrowers will furnish to the Administrative Agent together (with a summary specifying the name and balance due for copies to be provided to each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to Lender by 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 available, but in any event within 30 days 15 Business Days of the end such extension of credit, an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a UK Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a Puerto Rican Borrowing Base Certificate and a Dutch Borrowing Base Certificate, in each calendar month (case which calculates such Borrowing Base as of the month then endedlast day of such month, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base, the US Borrowing Base, the UK Borrowing Base, the Canadian Borrowing Base, the Puerto Rican Borrowing Base or the Dutch Borrowing Base of a Borrower as the Administrative Agent or either Collateral Agent may reasonably request and (ii) prior to any Disposition (or series of related Dispositions) of assets included in the Aggregate Borrowing Base with a fair market value in excess of $25,000,000 (other than any Disposition (x) by a Loan Party to a US Loan Party or (y) by a European Loan Party to another European Loan Party), 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 Borrowers will furnish to the Administrative Agent on (with copies to be provided to each Lender by the Administrative Agent) an Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a UK Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a Puerto Rican Borrowing Base Certificate and a Dutch Borrowing Base Certificate, in each case which calculates such Borrowing Base after giving pro forma effect to such Disposition (or series of related Dispositions) as of the last day of the most recently ended calendar month ended at least 15 Business Days prior to such Disposition (or series of related Dispositions), and supporting information in connection therewith, together with any additional reports with respect to the Closing DateAggregate Borrowing Base, the US Borrowing Base, the UK Borrowing Base, the Canadian Borrowing Base, the Puerto Rican Borrowing Base or the Dutch Borrowing Base of a Borrower as the Administrative Agent or either Collateral Agent may reasonably request; provided that no UK Borrowing Base Certificate, Canadian Borrowing Base Certificate, Puerto Rican Borrowing Base Certificate or Dutch Borrowing Base Certificate or additional reports with respect thereto shall be required under this clause (h) if the European Sublimit shall have been terminated;
(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 Borrower or any Subsidiarysubsidiary, 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, either Collateral Agent or any Lender (through the Administrative Agent) may reasonably request; and
(j) as soon as available, but in its sole discretion, may require the delivery any event within 15 Business Days of the reportsend of each calendar month, certificates and other documents required by Sections 5.01(f), (g), and (h) (with respect to a certificate setting forth the US Borrowers, UK Borrower or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in calculation of the case Fixed Charge Coverage Ratio as of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt last day of such certificatescalendar month, together with supporting information in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
