Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender: (a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of 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 income, shareholders’ 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 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 (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarter, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable 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 comparative form the respective financial statements for the corresponding date and period in the previous fiscal year. (c) During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, 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 comparative form the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year. (d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (b) or (c), certify that such financial statements present 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, (ii) 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) state whether any change in GAAP or in the application thereof has occurred since the date of the 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, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, and (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”. (e) On or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request. (f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent: (i) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts; (ii) a schedule detailing the Loan Parties’ Inventory; (iii) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion; (iv) a reconciliation of the Loan Parties’ Credit Card Accounts and Inventory between (A) the amounts shown in the Loan Parties’ 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 delivered pursuant to clause (e) above as of such date; and (v) such other information regarding the Collateral or Loan Parties as the 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 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) Concurrent with delivery thereof to the Term Agent or Other Secured Debt Agent, any additional (or more frequent) information or reports provided to the Term Agent or Other Secured Debt Agent pursuant to the Term Loan Agreement or Other Secured Debt Loan Agreement, as applicable (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the 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 5.02(p)(iv) upon 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, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings 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 Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of 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 income, shareholders’ 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 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 any qualification (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) or exception as to the scope of such audit 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 (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarter, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable 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 comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
(c) During any Increased Financial Reporting Period, within Within thirty (30) days after the end of each fiscal month of the Company, (i) monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements statement of operations and a report of cash flows flows, including Capital Expenditures, depreciation and amortization and other significant cash flow items for such fiscal month, in each case, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, 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 comparative form (A) the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal yearyear and (B) the Projections and (ii) a report, in form reasonably satisfactory to the Administrative Agent, of (A) sales and demand broken down by product segment for the prior fiscal month and (B) store count including store openings and store closings during the prior fiscal month.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (ba) or (cb), certify that such financial statements present 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, (ii) 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) when delivered concurrently with the delivery of the financial statements delivered under clause (a) or (b), state whether any change in GAAP or in the application thereof has occurred since the date of the 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) when delivered concurrently with the delivery of the financial statements delivered under clause (a), include the calculation of Consolidated Excess Cash Flow, (v) include a calculation of Consolidated EBITDA to demonstrate compliance with the covenant set forth in Section 6.13, (vi) 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, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, and (vvii) 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”.
(e) On or before each Borrowing Base Reporting Date, (i) a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
(i) a reasonably detailed aging of the Loan Parties’ (A) Credit Card Accounts, (B) Accounts collected pursuant to the Factoring Agreements and (C) Accounts collected in-house by the Loan Parties;
(ii) a schedule detailing the Loan Parties’ Inventory, including a reasonably detailed aging thereof;
(iii) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts, Eligible Inventory, Eligible Consigned Inventory, Accounts and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Inventory, Eligible Consigned Inventory, Accounts and Eligible In-Transit Inventory and the reason for such exclusion;
(iv) a reconciliation of the Loan Parties’ Credit Card Accounts and Inventory between (A) the amounts shown in the Loan Parties’ 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 delivered pursuant to clause (e) above as of such date; and
(v) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request.
(g) Concurrent Concurrently 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 delivery thereof to the Administrative Agent members of any removal or addition of any credit card issuer or credit card processor the IPCo JV, and no less frequently than once per fiscal quarter, all financial statements, other reports and material notices with respect 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 completedIPCo JV.
(h) Concurrent with delivery thereof to the Term ABL Agent or Other Secured Debt Agentthe ABL Lenders, as applicable, any additional (or more frequent) information or reports provided to the Term ABL Agent or Other Secured Debt Agent the ABL Lenders pursuant to the Term Loan ABL Credit Agreement or Other Secured Debt Loan Agreement, as applicable (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the 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 5.02(p)(iv) upon 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, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings 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 Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of 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 income, shareholders’ 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 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-forty- five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarteror, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable 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 comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.its
(c) During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, 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 comparative form the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (b) or (c), certify that such financial statements present 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, (ii) 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) state whether any change in GAAP or in the application thereof has occurred since the date of the 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) provide reasonably detailed calculations demonstrating the Consolidated Fixed Charge Coverage Ratio, (v) describe whether, since the later of the date hereof hereofClosing 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) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) closed any store location, and (vvi) certifying certify 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”.
(e) On or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
(i) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts and other Accounts;
; (ii) a schedule detailing the Loan Parties’ Inventory;
; (iii) a reasonably detailed accounts payable aging; (iv) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
; (ivv) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and Inventory between (A) the amounts shown in the Loan Parties’ 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 delivered pursuant to clause (e) above as of such date; and
and (vvi) such other information regarding the Collateral or Loan Parties as the 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 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) Concurrent with delivery thereof to the Term Agent or Other Secured Debt Agent, any additional (or more frequent) information or reports provided to the Term Agent or Other Secured Debt Agent pursuant to the Term Loan Agreement or Other Secured Debt Loan Agreement, as applicable (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the 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 5.02(p)(iv) upon 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, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.the
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of 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 income, shareholders’ 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 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 (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarteror, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable 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 comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
(c) During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, 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 comparative form the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (b) or (c), certify that such financial statements present 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, (ii) 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) state whether any change in GAAP or in the application thereof has occurred since the date of the 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) provide reasonably detailed calculations demonstrating compliance with Section 6.12 (including, irrespective of whether a Covenant Testing Event is then in effect, reasonably detailed calculations with respect to Consolidated Net Leverage Ratio for such applicable period), (v) describe whether, since the later of the date hereof Closing 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) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) or closed any store location, and (vvi) certifying certify 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”.
(e) On or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
(i) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts and other Accounts;
(ii) a schedule detailing the Loan Parties’ Inventory;
(iii) a reasonably detailed accounts payable aging;
(iv) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
(ivv) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and Inventory between (A) the amounts shown in the Loan Parties’ 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 delivered pursuant to clause (e) above as of such date; and
(vvi) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request.
(g) Concurrent Concurrently 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 delivery thereof to the Administrative Agent members of any removal or addition of any credit card issuer or credit card processor the IPCo JV, and no less frequently than once per fiscal quarter, all financial statements, other reports and material notices with respect 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 completedIPCo JV.
(h) Concurrent with delivery thereof to the Term ABL Agent or Other Secured Debt Agentthe ABL Lenders, as applicable, any additional (or more frequent) information or reports provided to the Term ABL Agent or Other Secured Debt Agent the ABL Lenders pursuant to the Term Loan ABL Credit Agreement or Other Secured Debt Loan Agreement, as applicable (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the 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 5.02(p)(iv) upon 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, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.
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Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of 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 income, shareholders’ 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 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-forty- five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarteror, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable 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 comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.its
(c) During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, 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 comparative form the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (b) or (c), certify that such financial statements present 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-year- end audit adjustments and the absence of footnotes, (ii) 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) state whether any change in GAAP or in the application thereof has occurred since the date of the 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) provide reasonably detailed calculations demonstrating the Consolidated Fixed Charge Coverage Ratio, (v) describe whether, since the later of the date hereof Closing 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) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) closed any store location, and (vvi) certifying certify 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”.
(e) On or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
122 (i) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts and other Accounts;
; (ii) a schedule detailing the Loan Parties’ Inventory;
; (iii) a reasonably detailed accounts payable aging; (iv) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
; (ivv) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and Inventory between (A) the amounts shown in the Loan Parties’ 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 delivered pursuant to clause (e) above as of such date; and
and (vvi) such other information regarding the Collateral or Loan Parties as the 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 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) Concurrently with any delivery thereof to the members of the IPCo JV, and no less frequently than once per fiscal quarter, all financial statements, other reports and material notices with respect to the IPCo JV.
(hi) Concurrent with delivery thereof to the Term Agent or Other Secured Debt Agentthe Term Lenders, as applicable, any additional (or more frequent) information or reports provided to the Term Agent or Other Secured Debt Agent the Term Lenders pursuant to the Term Loan Credit Agreement or Other Secured Debt Loan Agreement, as applicable (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the 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 5.02(p)(iv) upon 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, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.)
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