INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower. (b) The Borrower, at its own expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent. (i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory. (ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records. (c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower). (d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002. (e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 2 contracts
Samples: Loan and Security Agreement (Gander Mountain Co), Loan and Security Agreement (Gander Mountain Co)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Collateral Agent, at the reasonable expense of the BorrowerLoan Parties, may participate in and/or observe each scheduled physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrowerany Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory of each of Division to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Collateral Agent and following such methodology as may be reasonably satisfactory to the Collateral Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five forty-five (45) days following the completion of such inventory, shall provide the Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowerany Loan Party) and shall post such results to the Borrower's Loan Parties' stock ledger and, as applicable to the Borrower's Loan Parties' other financial books and recordsrecords .
(cii) The Collateral Agent, in its their reasonable, good faith discretion, if the Borrower any Event of Default has occurred and is InDefaultcontinuing, may cause such additional inventories to be taken as the Collateral Agent determines determine (each, at the expense of the BorrowerLoan Parties).
(dc) The Collateral Agent contemplates conducting Four (4) may obtain appraisals of the Collateral (copies of which, subject to the approval of the appraiser, shall be provided to the Lead Borrower promptly upon receipt thereof), from time to time (in all events, at the Loan Parties' expense) conducted by Hilco Appraisal Services, LLC or such appraisers as are satisfactory to the Collateral Agent. The Collateral Agent may conduct up to two (2) appraisals (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Loan Parties' expense) of the Borrower's books and records Collateral during any Twelve twelve (12) month period during which this Agreement is in effect, but in its their reasonable, good faith discretion, during the occurrence and continuance of an Event of Default, may undertake additional such appraisals (likewise at the Loan Party's expense) during such period.
(d) The Collateral Agent may conduct up to two (2) commercial finance field examinations (in each event, at the Loan Parties' expense) of the Loan Parties' books and records during any twelve (12) month period during which this Agreement is in effect, but in their reasonable, good faith discretion during the occurrence and continuance of an Event of Default, may undertake additional such audits (likewise at the Loan Party's expense) during such period.
(e) Notwithstanding anything to the contrary herein contained, upon the occurrence of any event or circumstance which is reasonably likely to have a material adverse effect on the business, operations, property, assets, or financial condition of any Division, the limitations set forth in clauses (c) and (d) on the number of appraisals and commercial finance examinations which the Agent may cause to be undertaken for such Division only shall be inapplicable and the Agent may undertake as many appraisals and commercial finance examinations of such Division with such frequency as the Agent may deem reasonably appropriate and necessary (none of which shall be included in determining the number of appraisals and commercial finance examinations the Agent may undertake with respect to other Divisions).
(f) Pursuant to the terms of the Intercreditor Agreement, CCM, as agent under the Senior Non-Convertible Facility, may require the Collateral Agent to undertake appraisals of the Collateral by appraisers selected in accordance with the provisions of Section 6.9(c) hereof. Any such appraisals undertaken by the Collateral Agent at the requirement of CCM shall not reduce the number of appraisals permitted to be undertaken by the Collateral Agent under Section 6.9(c) hereof. To the extent that the results of any such appraisal reflect a reduction in the Appraised Inventory Liquidation Value, the Collateral Agent may in their reasonable, good faith discretion reduce the Inventory Advance Rates in a manner consistent with the reduced Appraised Inventory Liquidation Value. In no event shall such Inventory Advance Rates be subject to increase as a result of such appraisals, provided that nothing contained herein shall impair the right of the Collateral Agent to increase the Inventory Advance Rate as set forth in the definition of such term..
(g) The Collateral Agent from time to time may undertake "mystery shopping" (so-called) visits to all or any of the Loan Parties' business premises.
Appears in 2 contracts
Samples: Loan and Security Agreement (Retail Ventures Inc), Loan and Security Agreement (DSW Inc.)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Collateral Agent, at the reasonable expense of the BorrowerLoan Parties, may participate in and/or observe each scheduled physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrowerany Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory of each of Borrower to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Collateral Agent and following such methodology as may be reasonably satisfactory to the Collateral Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five forty-five (45) days following the completion of such inventory, shall provide the Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowerany Loan Party) and shall post such results to the Borrower's Loan Parties' stock ledger and, as applicable to the Borrower's Loan Parties' other financial books and recordsrecords .
(cii) The Collateral Agent, in its their reasonable, good faith discretion, if the Borrower any Event of Default has occurred and is InDefaultcontinuing, may cause such additional inventories to be taken as the Collateral Agent determines determine (each, at the expense of the BorrowerLoan Parties).
(dc) The Collateral Agent contemplates conducting Four (4) may obtain appraisals of the Collateral (copies of which, subject to the approval of the appraiser, shall be provided to the Lead Borrower promptly upon receipt thereof), from time to time (in all events, at the Loan Parties' expense) conducted by Hilco Appraisal Services, LLC or such appraisers as are satisfactory to the Collateral Agent. The Collateral Agent may conduct one (1) appraisal (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Loan Parties' expense) of the Borrower's books and records Collateral during any Twelve twelve (12) month period during which this Agreement is in effect, but in its their reasonable, good faith discretion, during the occurrence and continuance of an Event of Default, may undertake additional such appraisals (likewise at the Loan Party's expense) during such period.
(d) The Collateral Agent may conduct one (1) commercial finance field examinations (in each event, at the Loan Parties' expense) of the Loan Parties' books and records during any twelve (12) month period during which this Agreement is in effect, but in their reasonable, good faith discretion during the occurrence and continuance of an Event of Default, may undertake additional such audits (likewise at the Loan Party's expense) during such period.
(e) Notwithstanding anything to the contrary herein contained, upon the occurrence of any event or circumstance which is reasonably likely to have a material adverse effect on the business, operations, property, assets, or financial condition of any Borrower, the limitations set forth in clauses (c) and (d) on the number of appraisals and commercial finance examinations which the Agent may cause to be undertaken for such Borrower only shall be inapplicable and the Agent may undertake as many appraisals and commercial finance examinations of such Borrower with such frequency as the Agent may deem reasonably appropriate and necessary (none of which shall be included in determining the number of appraisals and commercial finance examinations the Agent may undertake with respect to other Borrowers).
(f) The Collateral Agent from time to time may undertake "mystery shopping" (so-called) visits to all or any of the Loan Parties' business premises.
Appears in 2 contracts
Samples: Loan and Security Agreement (DSW Inc.), Loan and Security Agreement (DSW Inc.)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical internal cycle count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One (1) physical conduct regular cycle inventory to be undertaken counts that determine total inventory value at least twice at each of its locations in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's ’s discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventory.
(ii) The Borrower, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger ’s By-Department monthly report generated by the Borrower’s inventory control system and, as applicable to the Borrower's ’s other financial books and records.
(ciii) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(dc) The Upon the request of the Agent contemplates conducting Four after reasonable prior notice, the Borrower shall permit, and cooperate with, the Agent or professionals (4including appraisers) retained by the Agent to conduct appraisals of the Collateral (Collateral, including, without limitation, the assets included in each eventthe Borrowing Base. The Borrower shall pay the fees and expenses of the Agent and such professionals with respect to such appraisals. Without limiting the foregoing, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to Borrower acknowledges that the AgentAgent may, but in its discretion, undertake up to two (2) appraisals in any Fiscal year at the Borrower’s expense, provided that during the continuance of an Increased Reporting Event arising as a result of the Borrower’s failure to maintain the required Availability, the Agent may undertake up to three (3) appraisals in any Fiscal year at the Borrower’s expense Notwithstanding the foregoing, the Agent may cause additional appraisals to be undertaken (i) as it in its discretion deems necessary or appropriate, at its own expense or, (ii) if required by Applicable Law or if the Borrower is InDefault, at the expense of the Borrower.
(d) Upon the request of the Agent after reasonable prior notice, the Borrower shall permit, and cooperate with, the Agent or professionals (including investment bankers, consultants, accountants, and lawyers) retained by the Agent to conduct commercial finance examinations and other evaluations, including, without limitation, of (i) the Borrower’s practices in the computation of the Borrowing Base and (ii) the assets included in the Borrowing Base and related financial information such appraisals during such periodas, but not limited to, sales, gross margins, payables, accruals and reserves. The Borrower shall pay the fees and expenses of the Agent and such professionals with respect to such examinations and evaluations. Without limiting the foregoing, the Borrower acknowledges and agrees that the first such appraisal shall be performedAgent may, received and approved by in its discretion, undertake up to two (2) commercial finance examinations in any Fiscal year at the Borrower’s expense, provided that during the continuance of an Increased Reporting Event arising as a result of the Borrower’s failure to maintain the required Availability, the Agent no later than April 1may undertake up to three (3) commercial finance examinations in any Fiscal year at the Borrower’s expense. Notwithstanding the foregoing, 2002the Agent may cause additional commercial finance examinations to be undertaken (i) as it in its discretion deems necessary or appropriate, at its own expense or, (ii) if required by Applicable Law or if the Borrower is InDefault, at the expense of the Borrower.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations from time to time (in each eventall events, at the Borrower's ’s expense) may undertake “mystery shopping” (so-called) visits to all or any of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period’s business premises.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hastings Entertainment Inc), Loan and Security Agreement (Hastings Entertainment Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrowerrequest of, a Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall to be subject to the Agent's discretion) conducted by such a national third party inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agenttaker.
(i) The Borrower Loan Parties shall provide the Agent Lender with a copy of the preliminary final results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) within Twenty fourteen (2014) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Loan Party’s books and recordsrecords within forty-five (45) days following completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Upon the Lender’s request from time to time, the Borrower shall, and shall cause each Guarantor to, permit the Lender to obtain appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the AgentLender and using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement. Without limiting the foregoing, but in its discretion, the Lender may undertake additional obtain periodic Inventory liquidation analyses performed by Hilco/Great American Group or another liquidation analysis firm selected by the Lender; provided that the expense for any such appraisals during such shall be borne by the Lender (except as provided in the final two sentences of this clause), unless and until the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000. At any time after the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000, the Lender shall have the right to undertake two appraisals, at the Loan Parties’ expense, in each twelve month period. The After the occurrence and during the continuance of an Event of Default, all such appraisals shall be undertaken at the Loan Parties’ expense.
(d) Upon the Lender’s request from time to time, the Borrower acknowledges shall, and agrees shall cause each Guarantor to, permit the Lender to conduct commercial finance audits of the Borrower’s and Guarantor’s books and records using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement, provided that the first expense for any such appraisal audits shall be performed, received and approved borne by the Agent no later than April 1Lender (except as provided in the final two sentences of this clause), 2002unless and until the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000. At any time after the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000, the Lender shall have the right to undertake two audits, at the Loan Parties’ expense, in each twelve month period. After the occurrence and during the continuance of an Event of Default, all such audits shall be undertaken at the Loan Parties’ expense.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such periodIntentionally Omitted.
Appears in 2 contracts
Samples: Loan and Security Agreement (Aeropostale Inc), Loan and Security Agreement (Aeropostale Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentTerm Collateral Agent may, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical inventory and any cycle count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the BorrowerBorrowers (provided that any expenses of Term Collateral Agent for which Term Collateral Agent seeks reimbursement shall be reasonable expenses). No Borrower may, without the prior written consent of the Term Collateral Agent, change the methodology to be followed in connection with the conduct of and reporting on the results of such inventory from the methodology employed by the Borrowers as of the date of this Agreement.
(b) The BorrowerBorrowers, at its own their expense, shall cause each store location, warehouse, and distribution center to have not less than One one (1) physical inventory to be undertaken or cycle count in each Twelve twelve (12) month period during which to be undertaken consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Term Collateral Agent's ’s reasonable discretion) , subject to reasonable coordination with the Revolving Loan Collateral Agent so as to not cause duplication), conducted by such inventory takers as are reasonably satisfactory to the Term Collateral Agent and following such methodology as may be reasonably satisfactory to the Term Agent.
(i) The Lead Borrower shall provide the Term Collateral Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Lead Borrower shall provide the Term Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Borrowers’ books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The Term Collateral Agent, in its discretiondiscretion and subject to reasonable coordination with the Revolving Loan Collateral Agent so as to not cause duplication, if following the Borrower is InDefaultoccurrence of and during the continuance of a Default or Event of Default, may cause such additional inventories to be taken as the Term Collateral Agent determines (each, at the expense of the Borrowers).
(c) If the Term Agent does not receive delivery of appraisals conducted by the Revolving Loan Agreement pursuant to the Intercreditor Agreement, the Term Collateral Agent may obtain appraisals (at the expense of the Borrowers) of the Borrowers’ Inventory and Real Estate in the event it deems it reasonably necessary in its discretion. In addition, the Term Collateral Agent may obtain, subject to reasonable coordination with the Revolving Loan Collateral Agent so as to not cause duplication, an appraisal of the Headquarters Facility (at the expense of the Borrower)) at any time after the Borrower incurs additional Indebtedness secured by the Headquarters Facility in excess of $1,000,000.
(d) The If the Term Agent contemplates conducting Four does not receive delivery of commercial finance audits conducted by the Revolving Loan Agreement pursuant to the Intercreditor Agreement, the Term Collateral Agent may conduct commercial finance audits (4) appraisals at the expense of the Collateral (Borrowers) in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but event it deems it reasonably necessary in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Mothers Work Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One eight (1) 8) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to consistent with the AgentBorrower's discretionexisting policies and procedures) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender, provided -------- that the Lender in its discretion may reduce the number of physical inventories ---- required upon its satisfactory review of the Borrower's planned implementation of a SKU perpetual inventory system.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation roll forward of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords within twenty (20) days following the completion of such inventory.
(cii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) appraisals of the Collateral Lender may obtain appraisals, from time to time (in each eventall events, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers Qualified Equipment Appraisers, Qualified Inventory Appraisers and Qualified Real Estate Appraisers, as are satisfactory applicable. Absent the occurrence and continuation of a Suspension Event, however, the Borrower shall not be responsible for the payment of expenses for (i) more than one appraisal on each parcel of Real Estate and one Equipment appraisal in any twelve month period at an aggregate expense not to exceed $35,000.00, and (ii) more than two Inventory appraisals in any twelve month period at an aggregate expense not to exceed $15,000.00, provided that if, and as long as, Availability based upon eligible Real Estate is less than $11,000,000.00, the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002responsible for up to three Inventory appraisals in any twelve month period at an aggregate expense not to exceed $22,500.00.
(ed) The Agent Lender contemplates conducting Four (4) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period. Absent the occurrence, and continuation, of a Suspension Event, however, the Borrower shall not be responsible for the payment of expenses for more than four commercial finance audits in any twelve month period at an aggregate expense not to exceed $24,000.00.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
Appears in 1 contract
Samples: Loan and Security Agreement (Harrys Farmers Market Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrowerrequest of, a Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall to be subject to the Agent's discretion) conducted by such a national third party inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agenttaker.
(i) The Borrower Loan Parties shall provide the Agent with a copy of the preliminary final results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) within Twenty fourteen (2014) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Loan Party’s books and recordsrecords within forty-five (45) days following completion of such inventory.
(ciii) The Agent, in its discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of a Suspension Event or an Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(div) The Agent contemplates conducting Four Agent, in its reasonable discretion, may cause such additional inventories to be taken as it deems necessary or appropriate (4) appraisals each at the expense of the Collateral Agent and Lenders).
(in c) Upon the Agent’s request from time to time, the Borrower shall, and shall cause each eventGuarantor to, at permit the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect Agent to obtain appraisals conducted by such appraisers as are satisfactory to the Agent. Without limiting the foregoing, but the Agent may obtain periodic liquidation analyses with respect to the Collateral performed by Hilco Valuation Services, Great American Group or another valuation firm selected by the Agent; provided that the expense for any such appraisals shall be borne by the Agent and Lenders (except as provided in the following three sentences). The Agent may, in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that up to one (1) appraisal of the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each eventCollateral, at the Borrower's Loan Parties’ expense) of the Borrower's books and records during any Twelve , in each twelve (12) month period during which this Agreement period. Notwithstanding the foregoing, to the extent that Availability (Revolving Credit) is in effectat any time less than fifty percent (50%) of the lesser of the Commitments (Revolving Credit) or the Borrowing Base (Revolving Credit), but then the Agent may, in its discretion, undertake up to two (2) appraisals of the Collateral at the Loan Parties’ expense, in each subsequent twelve (12) month period. The Agent may undertake cause additional appraisals of the Collateral to be undertaken (i) as Agent, using its reasonable discretion, deems necessary or appropriate, at the Lenders’ expense, or (ii) if required by applicable Requirements of Law or if a Suspension Event or Event of Default has occurred and is continuing, at the expense of the Borrower.
(d) Upon the Agent’s request from time to time, the Borrower shall, and shall cause each other Loan Party to, permit the Agent to conduct commercial finance audits of the Borrower’s and the other Loan Parties’ books and records, provided that the expense for any such audits during such shall be borne by the Agent and Lenders (except as provided in the following three sentences). The Agent may, in its discretion, undertake up to one (1) audit at the Loan Parties’ expense, in each twelve (12) month period. Notwithstanding the foregoing, to the extent that Availability (Revolving Credit) is at any time less than fifty percent (50%) of the lesser of the Commitments (Revolving Credit) or the Borrowing Base (Revolving Credit), then the Agent may, in its discretion, undertake up to two (2) audits, at the Loan Parties’ expense, in each subsequent twelve (12) month period. The Agent may cause additional audits to be undertaken
(i) as Agent, using its reasonable discretion, deems necessary or appropriate, at the Lenders’ expense, or (ii) if required by applicable Requirements of Law or if a Suspension Event or Event of Default has occurred and is continuing, at the expense of the Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the BorrowerBorrower in each instance after the occurrence and during the continuance of an Event of Default, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the AgentLender's discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender. Notwithstanding the foregoing, the Borrower may notify the Lender that the Borrower only intends to conduct one (1) such physical inventory during a particular period, in which event, no second inventory shall be undertaken, unless the Lender reasonably determines, in the Lender's discretion, that a second inventory should be undertaken, in which event, it shall be undertaken by the Borrower.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty thirty (2030) days following the completion of such inventory.
(ii) The Borrower, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords .
(ciii) The AgentLender, in its discretion, if discretion from and after the Borrower is InDefaultoccurrence and during the continuance of any Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower)Lender determines.
(dc) The Agent contemplates conducting Four (4) Lender may obtain appraisals of the Collateral (in each eventCollateral, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect from time to time conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002Lender.
(ed) The Agent Lender contemplates conducting Four Three (43) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the AgentLender's discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such physical inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Lender may obtain appraisals of the Collateral Collateral, from time to time (in all events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Lender. The Lender contemplates conducting no less than Two (2) and not more than Three (3) such appraisals (in each event, at the Borrower's expense) of the Collateral during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agenteffect, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(ed) The Agent Lender contemplates conducting Four no less than Two (42) and not more than Three (3) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
(f) The Lender agrees that prior to the occurrence of any Event of Default, the maximum amount of third party fees for which the Borrower shall be obligated to reimburse the Lender, cumulatively in any Twelve (12) month period during which this Agreement is in effect, is the aggregate of the following plus out of pocket expenses: Audits: $30,000.00. Appraisals: 35,000.00. In the event of and following the occurrence of any Event of Default, there shall not be any "cap" on such fees.
Appears in 1 contract
Samples: Loan and Security Agreement (Bakers Footwear Group Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(b) The BorrowerBorrowers, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve (12) month period Fiscal year during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) effect, conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be is reasonably satisfactory to the Agent.
(i) The Borrower Each such inventory shall provide be reconciled and recorded in the Agent with a copy Borrowers' financial statements within thirty (30) days of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days date following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five thirty (4530) days following the completion end of such inventoryeach month, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsthat was recorded in that month.
(ciii) The Agent, in its discretion, if the any Borrower is InDefaultin Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the BorrowerBorrowers).
(c) The Agent may obtain appraisals of the Collateral, from time to time (in all events, at the Borrowers' expense), up to a maximum cost to the Borrowers of $50,000.00 in any twelve (12) month period provided that no Default or Event of Default has occurred, conducted by such appraisers as are reasonably satisfactory to the Agent.
(d) The Agent contemplates conducting Four three (4) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (43) commercial finance field examinations (in each event, at the Borrowers' expense up to a maximum cost to the Borrowers of $45,000.00 in any twelve (12) month period provided that no Default or Event of Default has occurred, and in each event on reasonable prior notice to the Lead Borrower's expense) of the Borrower's Borrowers' books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent may, at the expense of the Borrower, may participate in and/or observe each physical inventory and any cycle count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower. The Borrower may not change the methodology to be followed in connection with the conduct of and reporting on the results of such inventory from the methodology employed by the Borrower as of the date of this Agreement.
(b) The Borrower, at its own expense, shall cause each store location, warehouse, and distribution center in the Eastern Division to have not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which to be undertaken, and cycle counts for the Western Division, consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's ’s discretion) ), conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be reasonably satisfactory to the Agent.
(ic) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(iid) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial ’s books and recordsrecords within thirty (30) days following the completion of such inventory.
(ce) The Agent, in its discretion, if following the Borrower is InDefaultoccurrence and during the continuance of a Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(df) The Agent contemplates conducting Four obtaining up to two (42) appraisals appraisal (at the expense of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records ’s Inventory during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional obtain more in the event it deems it reasonably necessary in its discretion, provided that, prior to the occurrence of an Event of Default, such appraisals shall be at the expense of the Borrower, provided, further, that prior to the occurrence of an Event of Default, the aggregate annual expense to the Borrower for such appraisals and commercial finance audits conducted by the Agent shall be capped at $65,000, provided, further, that following the occurrence and during the continuance of an Event of Default, the expense to the Borrower for such appraisals and commercial finance audits shall not be capped. Each appraisal required by the Agent pursuant to this Agreement shall be conducted by such appraisers as are satisfactory to the Agent.
(g) The Agent contemplates conducting two (2) commercial finance audits (each at the expense of the Borrower) of the Borrower’s books and records during any twelve (12) month period during which this Agreement is in effect, but in its discretion, may obtain more in the event it deems it reasonably necessary in its discretion, provided that, such audits shall be at the expense of the Borrower, subject to the cap, if applicable, as set forth in Section 5.10(f), above.
(h) The Agent contemplates conducting one (1) appraisal (at the Borrower’s expense) of the Borrower’s Eligible Real Property during such periodany twenty-four (24) month period during which this Agreement is in effect, but in its discretion, may obtain more (at the Borrower’s expense) in the event it deems it reasonably necessary in its discretion or to the extent required by law or regulation applicable to Lender.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (ai) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrowerrequest of, a Loan Party.
(bii) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall to be subject to the Agent's discretion) conducted by such a national third party inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agenttaker.
(iA) The Borrower Loan Parties shall provide the Agent Lender with a copy of the preliminary final results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) within Twenty fourteen (2014) days following the completion of such inventory.
(iiB) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Loan Party’s books and recordsrecords within forty-five (45) days following completion of such inventory.
(cC) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(diii) The Agent contemplates conducting Four (4) Upon the Lender’s request from time to time, the Borrower shall, and shall cause each Guarantor to, permit the Lender to obtain appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the AgentLender and using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement. Without limiting the foregoing, but in its discretion, the Lender may undertake additional obtain periodic Inventory liquidation analyses performed by Hilco/Great American Group or another liquidation analysis firm selected by the Lender; provided that the expense for any such appraisals during such shall be borne by the Lender (except as provided in the final two sentences of this clause), unless and until the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000. At any time after the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000, the Lender shall have the right to undertake two appraisals, at the Loan Parties’ expense, in each twelve month period. The Borrower acknowledges After the occurrence and agrees that during the first continuance of an Event of Default, all such appraisal appraisals shall be performed, received and approved by undertaken at the Agent no later than April 1, 2002Loan Parties’ expense.
(eiv) The Agent contemplates conducting Four (4) Upon the Lender’s request from time to time, the Borrower shall, and shall cause each Guarantor to, permit the Lender to conduct commercial finance field examinations audits of the Borrower’s and Guarantor’s books and records using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement, provided that the expense for any such audits shall be borne by the Lender (except as provided in each eventthe final two sentences of this clause), unless and until the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000. At any time after the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000, the Lender shall have the right to undertake two audits, at the Borrower's Loan Parties’ expense) , in each twelve month period. After the occurrence and during the continuance of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effectan Event of Default, but in its discretion, may undertake additional all such audits during such periodshall be undertaken at the Loan Parties’ expense.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrowerrequest of, a Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall to be subject to the Agent's discretion) conducted by such a national third party inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agenttaker.
(i) The Borrower Loan Parties shall provide the Agent with a copy of the preliminary final results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) within Twenty fourteen (2014) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Loan Party’s books and recordsrecords within forty-five (45) days following completion of such inventory.
(ciii) The Agent, in its sole discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of an Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(div) The Agent, in its reasonable discretion, may cause such additional inventories to be taken as the Agent contemplates conducting Four deems necessary or appropriate in its sole discretion (4) appraisals of the Collateral (in each eventeach, at the expense of the Borrower's expense).
(c) during any Twelve (12) month period during which this Agreement is in effect Upon the Agent’s request from time to time, the Borrower shall, and shall cause each Guarantor to, permit the Agent to obtain appraisals conducted by such appraisers as are satisfactory to the AgentAgent and using a methodology similar in scope and nature as was undertaken prior to the effectiveness of this Agreement. Without limiting the foregoing, but in its discretionthe Agent may obtain periodic Inventory and Trademark liquidation analyses performed by Hilco Valuation Services, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved Great American Group or another liquidation analysis firm selected by the Agent no later than April 1, 2002and at the expense of the Borrower.
(ed) The Upon the Agent’s request from time to time, the Borrower shall, and shall cause each other Loan Party to, permit the Agent contemplates conducting Four (4) to conduct commercial finance field examinations (in each event, at the Borrower's expense) audits of the Borrower's ’s and the other Loan Parties’ books and records during using a methodology similar in scope and nature as was undertaken prior to the effectiveness of this Agreement, and the expense for any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such periodshall be borne by the Borrower.
Appears in 1 contract
Samples: Secured Superpriority Debtor in Possession Loan, Security and Guaranty Agreement (Aeropostale Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the such Borrower.
(b) The BorrowerBorrowers, at its their own expense, shall cause not less than One (1) a physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretiondiscretion based on a material uncertainty of the value of the Collateral) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower Company shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) within Twenty ten (2010) days following the completion of such inventory.
(ii) The BorrowerCompany, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) and shall post such results to the each Borrower's stock ledger and, as applicable to the such Borrower's other financial books and records.
(c) The Agent, in its discretion, if the any Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the BorrowerBorrowers).
(d) The Agent contemplates conducting Four (4) may obtain appraisals of the Collateral (including but not limited to Eligible Real Estate Assets), from time to time (in each eventall events, at the Borrower's Borrowers' expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four up to four (4) commercial finance field examinations (in each event, at the Borrower's Borrowers' expense) of the Borrower's Borrowers' books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much each Inventory of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The BorrowerBorrower shall obtain physical counts of its Inventory prior to closing and every sixty (60) days thereafter until it has installed a system, sufficient in the Lender's discretion, for monitoring Inventory. Upon the Lender's request from time to time, the Borrower shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrower's expense, shall cause not less than One (1) additional physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing counts and/or Inventories of the scheduling of which inventories shall be subject to the Agent's discretion) Collateral, conducted by such inventory Inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to required by the Agent.
(i) The Borrower Lender, each of which physical counts and/or Inventories shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken be observed by the Borrower's accountants. The Lender contemplates conducting up to Two (2) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in each event, at the Borrower's expense) counts and/or Inventories during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this within Agreement is in effect, but in its discretion, may undertake additional such audits counts or Inventories during such period.
(c) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain appraisals conducted by such appraisers as are satisfactory to the Lender. Up to Four (4) such appraisals that are conducted prior to the occurrence of an Event of Default and all such appraisals that are conducted after the occurrence of an Event of Default shall be at the Borrower's expense.
(d) The Lender contemplates conducting Four
Appears in 1 contract
Samples: Loan and Security Agreement (Big Entertainment Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender and each Participant, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The BorrowerUpon the Lender's request from time to time, the Borrower shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrower's expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing counts and/or inventories of the scheduling of which inventories shall be subject to the Agent's discretion) Collateral, conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to required by the Agent.
(i) The Borrower Lender, one of which physical counts and/or inventories shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken be observed by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of 's accountants in each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsfiscal year.
(c) The AgentUpon the Lender's request from time to time, in its discretion, if the Borrower is InDefault, may cause such additional inventories shall permit the Lender to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) obtain appraisals of the Collateral (in each eventall events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Lender and the Participants. The Lender contemplates conducting one (1) inventory appraisal and one Real Estate appraisal during any Twelve (12) month period during which this the within Agreement is in effect conducted by such appraisers as are satisfactory to the Agenteffect, but in its discretion, discretion may undertake additional such appraisals during such period. The Borrower acknowledges and agrees period (provided that the first Borrower shall not be responsible for the cost of such appraisal additional appraisals unless either (i) the Borrower's Availability under the Revolving Credit is ever less than $10,000,000.00, in which event the Borrower shall be performedpay for up to two (2) additional inventory appraisals, received and approved by the Agent no later than April 1, 2002or (ii) an Event of Default then exists).
(ed) The Agent Lender contemplates conducting Four Two (42) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this the within Agreement is in effect, but in its discretion, may undertake additional such audits during such periodperiod (provided that the Borrower shall not be responsible for the cost of such additional audits unless an Event of Default then exists).
(e) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain environmental site assessments (in all events, at the Borrower's expense) conducted by such Persons as are satisfactory to the Lender. The Lender contemplates conducting One (1) such site assessment during any Twelve (12) month period during which the within Agreement is in effect, but in its discretion, after the occurrence of an Event of Default, may undertake additional site assessments during such periods.
(f) The Lender agrees that, to the extent that any of the actions set forth in this Section 5-9 are also undertaken by the Revolving Credit Lenders by Persons and methodology acceptable to the Lender and the Participants and the results thereof are shared by the Revolving Credit Lenders with the Lender and the Participants hereunder, the Lender will not undertake any action described in this Section 5-9 which would duplicate the efforts of the Revolving Credit Lenders.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Sun Television & Appliances Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(b) The BorrowerBorrowers, at its their own expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such third-party inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be reasonably satisfactory to the Agent.
(i) The Lead Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the any Borrower) within Twenty Ten (2010) days following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five Thirty (4530) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the any Borrower) and shall post such results to the Borrower's Borrowers' stock ledger and, as applicable to the Borrower's Borrowers' other financial books and records.
(ciii) The Agent, in its discretion, if the any Borrower is InDefaultIn Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the BorrowerBorrowers).
(dc) The Agent contemplates conducting Four (4) may obtain appraisals of the Collateral Collateral, from time to time (in each eventall events, at the Borrower's Borrowers' expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such third-party appraisers as are reasonably satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(ed) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Borrowers' expense) of the Borrower's Borrowers' books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits (likewise at the Borrower's expense) during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent may, at the expense of the Borrower, may participate in and/or observe each physical inventory and any cycle count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower. The Borrower may not change the methodology to be followed in connection with the conduct of and reporting on the results of such inventory from the methodology employed by the Borrower as of the date of this Agreement.
(b) The Borrower, at its own expense, shall cause each store location, warehouse, and distribution center in the Eastern Division to have not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which to be undertaken, and cycle counts for the Western Division, consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's ’s discretion) ), conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be reasonably satisfactory to the Agent; provided, that, following the IT Trigger Date the Borrower shall, at its expense, cause each store location, warehouse and distribution center in the Western Division to have not less than one (1) physical inventory in each twelve (12) month period to be undertaken.
(ic) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(iid) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial ’s books and recordsrecords within thirty (30) days following the completion of such inventory.
(ce) The Agent, in its discretion, if following the Borrower is InDefaultoccurrence and during the continuance of a Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(df) The Agent presently contemplates conducting Four obtaining up to three (43) appraisals of the Collateral (in each event, at the Borrower's expense) ’s Inventory during any Twelve twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to but may obtain more in the Agent’s good faith judgment; provided, but in its discretionthat, may undertake additional such so long as no Default or Event of Default exists, the Borrower shall not be liable for the costs and expenses of more than three (3) appraisals (or if Excess Availability shall have fallen below twenty percent (20%) of the Borrowing Base, four (4) appraisals) during such period. The Borrower acknowledges and agrees that any twelve (12) month period (exclusive of the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002delivered pursuant to Article III).
(eg) The Agent presently contemplates conducting Four up to three (43) commercial finance field examinations (in each event, at the Borrower's expense) audits of the Borrower's ’s books and records during any Twelve twelve (12) month period during which this Agreement is in effecteffect but may obtain more in the Agent’s good faith judgment; provided, that, so long as no Default or Event of Default exists, the Borrower shall not be liable for the costs and expenses of more than three (3) commercial finance audits (or if Excess Availability shall have fallen below twenty percent (20%) of the Borrowing Base, four (4) commercial finance audits) during any twelve (12) month period (exclusive of the commercial finance audit delivered pursuant to Article III).
(h) The Agent presently contemplates conducting one (1) appraisal of the Borrower’s Eligible Real Property during any twelve (12) month period during which this Agreement is in effect but may obtain more in its discretionthe Agent’s good faith judgment; provided, may undertake additional such audits that, so long as no Default or Event of Default exists, the Borrower shall not be liable for the costs and expenses of more than one (1) appraisal (during such periodany twelve (12) month period (exclusive of the appraisal delivered pursuant to Article III).
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent and each Lender, at the expense of the BorrowerBorrowers, may participate in and/or observe observe, at the Parent's distribution facility, each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the BorrowerBorrowers.
(b) The BorrowerAt the end of the Parent's second and fourth fiscal quarters, the Parent shall obtain, or shall permit the Agent to obtain (in all events, at its own the Borrowers' expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing counts and/or inventories of the scheduling of which inventories shall be subject to the Agent's discretion) Collateral, conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be satisfactory reasonably required by the Agent. Following the occurrence and during the continuance of an Event of Default, the Agent, in its discretion, may undertake additional such counts or inventories as the Agent determines. Copies of all reports and other information relating to such physical counts and/or inventories, whenever taken (and not merely those described above) shall be promptly furnished to the Agent.
(ic) The Borrower shall provide Upon the Agent's reasonable request from time to time (but not more than once in any twelve month period, unless Availability is ever less than $15,000,000.00, in which event the Agent with a copy of may undertake up to two such appraisals in any twelve month period), the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrowers shall provide permit the Agent with a reconciliation of the results of each such inventory to obtain appraisals (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (eachall events, at the expense of Borrowers' expense) conducted by such appraisers as are reasonably satisfactory to the Borrower)Agent.
(d) The Agent contemplates conducting Four two (42) appraisals of the Collateral commercial finance audits (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Borrowers' expense) of the Borrower's Borrowers' books and records during any Twelve (12) month period during which this the within Agreement is in effect, but in its discretiondiscretion if Availability is ever less than $15,000,000.00, may undertake one additional such audits audit at the Borrowers' expense during such period.
(e) Upon Agent's request, Parent shall provide the Agent with all reports relating to "mystery shopping" (so-called) visits to all or any of the Borrowers' business premises.
Appears in 1 contract
Samples: Loan and Security Agreement (Sunglass Hut International Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (ai) The AgentLender, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(bii) The BorrowerBorrowers, at its their own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the AgentLender's discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to is consistent with the AgentBorrowers' past practices.
(iA) The Lead Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the any Borrower) within Twenty ten (2010) days following the completion of such inventory.
(iiB) The Lead Borrower, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the any Borrower) and shall post such results to the Borrower's Borrowers' stock ledger and, as applicable to the Borrower's Borrowers' other financial books and recordsrecords .
(cC) The AgentLender, in its discretion, if the any Borrower is InDefault, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the BorrowerBorrowers).
(diii) The Agent contemplates conducting Four (4) Lender may obtain appraisals of the Collateral Collateral, from time to time (in each eventall events, at the Borrower's Borrowers' expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such periodLender. The Borrower acknowledges Lender anticipates that it will obtain (A) a desktop appraisal of the Collateral by September 30, 2000, (B) a full appraisal of the Collateral by October 31, 2000, (B) desktop appraisals of the Collateral at the end of each month, commencing November 30, 2000, and agrees that (C) a full appraisal of the first such appraisal shall be performed, received Collateral at the end of each fiscal quarter of the Borrowers thereafter. The Borrowers agree to cooperate with and approved provide information relating to the Collateral reasonably requested by each of the appraisers engaged by the Agent no later than April 1, 2002Lender to conduct the appraisals of the Collateral.
(eiv) The Agent Lender contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Borrowers' expense) of the Borrower's Borrowers' books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
Samples: Loan Agreement (Natural Wonders Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrower.request of, a Loan Party. -54-
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall to be subject to the Agent's discretion) conducted by such a national third party inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agenttaker.
(i) The Borrower Loan Parties shall provide the Agent Lender with a copy of the preliminary final results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) within Twenty fourteen (2014) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Loan Party’s books and recordsrecords within forty-five (45) days following completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Upon the Lender’s request from time to time, the Borrower shall, and shall cause each Guarantor to, permit the Lender to obtain appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the AgentLender and using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement. Without limiting the foregoing, but in its discretion, the Lender may undertake additional obtain periodic Inventory liquidation analyses performed by Hilco/Great American Group or another liquidation analysis firm selected by the Lender; provided that the expense for any such appraisals during such shall be borne by the Lender (except as provided in the final two sentences of this clause), unless and until the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000. At any time after the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000, the Lender shall have the right to undertake two appraisals, at the Loan Parties’ expense, in each twelve month period. The Borrower acknowledges After the occurrence and agrees that during the first continuance of an Event of Default, all such appraisal appraisals shall be performedundertaken at the Loan Parties’ expense.
(d) Upon the Lender’s request from time to time, received the Borrower shall, and approved shall cause each Guarantor to, permit the Lender to conduct commercial finance audits of the Borrower’s and Guarantor’s books and records using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement, providedthat the expense for any such audits shall be borne by the Agent no later than April 1Lender (except as provided in the final two sentences of this clause), 2002unless and until the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000. At any time after the Aggregate Outstandings exceed, or are anticipated to exceed, $75,000,000, the Lender shall have the right to undertake two audits, at the Loan Parties’ expense, in each twelve month period. After the occurrence and during the continuance of an Event of Default, all such audits shall be undertaken at the Loan Parties’ expense.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.Intentionally Omitted. -55-
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender shall be permitted, either directly or through agents retained for that purpose, after delivery of reasonable advance notice to the Lead Borrower, and at the borrowers' expense in each instance, to conduct during regular business hours such audits, inspections, and field examinations of the Borrowers' books, records, and assets as the Lender may require from time to time, as the Lender in its reasonable discretion may determine are necessary and/or appropriate. The Lender contemplates conducting no more than 3 audits per year. The Borrowers, subject to receipt of reasonable advance notice, during regular business hours shall cooperate with and assist the Lender, or its agents, in connection with the performance of any such audit, inspection, and field examination.
(b) The Lender, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(bc) The Borrowers shall obtain (at the Borrower's expense in all instances) financial or SKU based physical counts and/or inventories conducted by such inventory takers as are satisfactory to the Lender and following such methodology as is consistent with the Borrowers' practices in effect at the execution of this Agreement and as provided in this Section.
(i) Unless an Event of Default has occurred and is continuing, at its own expense, the Borrowers shall cause not less than One (1) physical inventory the following number of such counts / inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect effect:
(the spacing of the scheduling of which inventories shall be subject to the Agent's discretionA) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the AgentRetail operations : One (1).
(iB) Direct operations (catalogue and web): One (1).
(ii) If an Event of Default occurs and is continuing, the foregoing limit on the number of such counts and/or inventories shall terminate and the Lender may require such counts and/or inventories (at the expense of the Borrowers in each instance) at such intervals as the Lender, in its discretion, may determine as being appropriate.
(iii) The Borrowers shall cause their accountants to observe the Borrowers' year end retail operations and direct operations counts / inventories (and such other counts / inventories as the accountants may require so as to permit those accountants to express its opinion on the Borrowers' annual Consolidated financial statement to the standard set out in this Agreement).
(iv) The Lead Borrower shall provide the Agent Lender with a copy of the preliminary results of each such count and/or inventory (as well as of any other physical inventory undertaken by the any Borrower) within Twenty ten (2010) business days following the completion of such inventory.
(iiv) The Lead Borrower, within Forty Five thirty (4530) days following the completion of such count and/or inventory, shall provide the Agent Lender with a reconciliation of the results of each such count and/or inventory (as well as of any other physical inventory undertaken by the any Borrower) and shall shall, in the case of a year-end inventory, post such results to the Borrower's Borrowers' stock ledger and, as applicable to the Borrower's Borrowers' other financial books and records.
(c) . The Agent, Lender may use the reconciliation and results of each such count and/or inventory and implement them in its discretion, if accordance with the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense terms of the Borrower)this Agreement.
(d) The Agent contemplates conducting Four (4) Lender may obtain such appraisals of Collateral consisting of Inventory, from time to time during the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which that this Agreement is in effect effect, conducted by such appraisers as are satisfactory to the Agent, but Lender (at the Borrowers' expense in its discretion, may undertake additional such appraisals during such periodeach instance). The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002Lender contemplates conducting 3 appraisals per year.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations Lender from time to time (in each eventall events, at the Borrower's Borrowers' expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such periodBorrowers' business premises.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Collateral Agent, at the reasonable expense of the BorrowerLoan Parties, may participate in and/or observe each scheduled physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrowerany Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory of each of Borrower to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Collateral Agent and following such methodology as may be reasonably satisfactory to the Collateral Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five forty-five (45) days following the completion of such inventory, shall provide the Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowerany Loan Party) and shall post such results to the Borrower's Loan Parties' stock ledger and, as applicable to the Borrower's Loan Parties' other financial books and records.
(cii) The Collateral Agent, in its their reasonable, good faith discretion, if the Borrower any Event of Default has occurred and is InDefaultcontinuing, may cause such additional inventories to be taken as the Collateral Agent determines determine (each, at the expense of the BorrowerLoan Parties).
(dc) The Collateral Agent contemplates conducting Four (4) may obtain appraisals of the Collateral (copies of which, subject to the approval of the appraiser, shall be provided to the Lead Borrower promptly upon receipt thereof), from time to time (in all events, at the Loan Parties' expense) conducted by Hilco Appraisal Services, LLC or such appraisers as are satisfactory to the Collateral Agent. The Collateral Agent may conduct one (1) appraisal (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Loan Parties' expense) of the Borrower's books and records Collateral during any Twelve twelve (12) month period during which this Agreement is in effect, but in its their reasonable, good faith discretion, during the occurrence and continuance of an Event of Default, may undertake additional such appraisals (likewise at the Loan Party's expense) during such period.
(d) The Collateral Agent may conduct one (1) commercial finance field examinations (in each event, at the Loan Parties' expense) of the Loan Parties' books and records during any twelve (12) month period during which this Agreement is in effect, but in their reasonable, good faith discretion during the occurrence and continuance of an Event of Default, may undertake additional such audits (likewise at the Loan Party's expense) during such period.
(e) Notwithstanding anything to the contrary herein contained, upon the occurrence of any event or circumstance which is reasonably likely to have a material adverse effect on the business, operations, property, assets, or financial condition of any Borrower, the limitations set forth in clauses (c) and (d) on the number of appraisals and commercial finance examinations which the Agent may cause to be undertaken for such Borrower only shall be inapplicable and the Agent may undertake as many appraisals and commercial finance examinations of such Borrower with such frequency as the Agent may deem reasonably appropriate and necessary (none of which shall be included in determining the number of appraisals and commercial finance examinations the Agent may undertake with respect to other Borrowers).
(f) The Collateral Agent from time to time may undertake "mystery shopping" (so-called) visits to all or any of the Loan Parties' business premises.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the reasonable expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One at least one (1) physical inventory to be undertaken during each year in each Twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's Lender’s reasonable discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be reasonably satisfactory to the AgentLender. If the Borrower is not In Default it may conduct such physical inventory using its own personnel; provided, however, the Lender in its reasonable discretion may require the Borrower to have such physical inventory be conducted by such independent inventory takers as reasonably acceptable to the Lender. Notwithstanding the foregoing, from and after and during the continuance of an Event of Default, the Lender may require such additional physical inventories as it shall deem necessary, each at the Borrower’s expense.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty Ten (2010) days following the completion of such inventory.
(ii) The Borrower, within Forty Five Thirty (4530) days following the completion of such inventory, shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's ’s stock ledger and, as applicable to the Borrower's ’s other financial books and records.
(ciii) The AgentLender, in its reasonable discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent Lender determines (each, each at the expense of the BorrowerLender’s expense).
(dc) The Agent So long as the outstanding balance of the Revolving Credit is maintained at $0.00 for at least Ninety (90) consecutive days (a “Clean Down Event”) during each calendar year, then the Lender contemplates conducting Four only One (41) appraisals appraisal of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect effect, conducted by such appraisers as are satisfactory to the AgentLender, but each at the expense of the Borrower. The Lender, in its discretion, may undertake conduct such additional such appraisals as the Lender determines (each at the Lender’s expense); provided, however, that (i) during such period. The Borrower acknowledges and agrees any calendar year that the first Borrower does not achieve a Clean Down Event, and (ii) from and after and during the continuance of an Event of Default, the Lender may require such appraisal additional appraisals as it shall be performeddeem necessary, received and approved by each at the Agent no later than April 1, 2002Borrower’s expense.
(ed) The Agent So long as the Borrower achieves a Clean Down Event in each calendar year, the Lender contemplates conducting Four One (41) commercial finance field examinations (in each event, at the Borrower's expense) and audits of the Borrower's ’s books and records during any Twelve (12) month period during which this Agreement is in effect, but each at the expense of the Borrower. The Lender, in its discretion, may undertake conduct such additional commercial finance field examinations and audits as the Lender determines (each at the Lender’s expense) provided, however, that (i) during any calendar year that the Borrower does not achieve a Clean Down Event, and (ii) from and after and during the continuance of an Event of Default, the Lender may require such audits during such periodadditional commercial finance field examinations as it shall deem necessary, each at the Borrower’s expense.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the AgentLender's discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain appraisals of the Collateral (in each eventall events, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002Lender.
(ed) The Agent Lender contemplates conducting Four (4) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(b) The BorrowerUpon the Lender’s request from time to time, the Borrowers shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrowers’ expense) financial or SKU based physical counts and/or inventories of the Collateral, conducted by such inventory takers as are satisfactory to the Lender and following such methodology as may be required by the Lender, each of which physical counts and/or financial or SKU based inventories shall cause not less than One be observed by the Borrowers’ accountants. The Lender will require the Borrowers to conduct one (1) physical such count and/or inventory to be undertaken in during each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject and to the Agent's discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower shall provide the Agent provided Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each any SKU, cycle or any other internal counts or inventories, but after the occurrence of any Event of Default, Lender, in its discretion, may require Borrowers, at Borrowers’ expense, to undertake additional such counts or inventories during such period. The draft or unaudited results of all inventories or counts shall be furnished to Lender immediately thereafter and final, reconciled results within as soon as practicable thereafter but in no event later then than ten (10) Banking Days of the taking of such inventories or counts. The Borrowers agree that the Lender is entitled to request and receive directly from the inventory taker the unaudited or draft results of any such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsor audit.
(c) The AgentUpon the Lender’s request from time to time, in its discretion, if the Borrower is InDefault, may cause such additional inventories Borrowers shall permit the Lender to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) obtain appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional Lender two (2) of which such appraisals and one “desktop update” thereof during such period. The Borrower acknowledges and agrees that each calendar year of the first such appraisal term of this Agreement shall be performedat Borrower’s expense, received and approved by any additional appraisals may be conducted at any time in Lender’s discretion at Lender’s expense, provided that after the Agent no later than April 1occurrence of any Event of Default, 2002any such additional appraisals shall also be at Borrowers’ expense.
(ed) The Agent Lender contemplates conducting Four three (43) commercial finance field examinations audits (in each event, at the Borrower's ’s expense) of the Borrower's Borrowers’ books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but after the occurrence of any Event of Default, Lender in its discretion, may may, at Borrowers’ expense, undertake additional such audits during such period.
(e) The Lender from time to time (in all events, at the Borrowers’ expense) may undertake “mystery shopping” (so-called) visits to all or any of the Borrowers’ business premises. The Lender shall provide the Borrowers with a copy of any non-company confidential results of such mystery shopping upon a Borrower’s written request.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent may, at the expense of the BorrowerBorrowers, may participate in and/or observe observe, each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the BorrowerBorrowers.
(b) The BorrowerBorrowers, at its their own expense, shall cause each store location to have not less than One one (1) physical inventory in each fiscal year to be undertaken in each Twelve (12) month period during which on a generally annual basis, consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's reasonable discretion) ), conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Lead Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) within Twenty thirty (2030) days following the completion of such inventoryits completion.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Lead Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory reconciliation undertaken by the BorrowerBorrowers) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Borrowers' books and recordsrecords within thirty (30) days following the completion of such inventory.
(iii) Following the occurrence of an Event of Default, the Agent may, in its discretion, cause such additional inventories to be taken as the Agent determines (each at the expense of the Borrowers).
(c) Upon the Agent's request from time to time, the Borrowers shall permit the Agent to arrange for Inventory appraisals (at the Borrower's expense) conducted by such appraisers as are satisfactory to the Agent. Prior to the occurrence of any Event of Default the Agent shall obtain two (2) appraisals in each twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which appraisals shall be subject to the Agent's discretion). The Agent, in its discretion, if following the Borrower is InDefaultoccurrence of an Event of Default, may cause such additional inventories appraisals to be taken as the Agent determines (each, at the expense of the BorrowerBorrowers).
(d) The Agent contemplates conducting Four two (42) appraisals commercial finance audits (at the Borrowers' expense) of the Collateral (in each event, at the Borrower's expense) Borrowers' books and records during any Twelve twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.month
(e) The Agent contemplates conducting Four causing not more than two (42) commercial finance field examinations (in each event, at the Borrower's expenseso-called) "mystery shopping" visits to all or any of the Borrower's books and records Borrowers' business premises during any Twelve (12) -month period during which this Agreement is in effect, but in its discretionfollowing the occurrence of an Event of Default, may undertake cause additional such audits during visits to be undertaken (in each event, at the Borrowers' expense). The Agent shall provide the Borrowers with a copy of any non-confidential results of such periodmystery shopping.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One one (1i) physical inventory plus three seasonal pack-away inventories (Halloween, Christmas and Easter) to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the AgentLender's discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain appraisals of the Collateral (in each eventall events, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002Lender.
(ed) The Agent Lender contemplates conducting Four (4) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the BorrowerBorrower in each instance after the occurrence and during the continuance of an Event of Default, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the AgentLender's discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentSenior Creditor. Notwithstanding the foregoing, the Borrower may notify the Lender that the Borrower only intends to conduct one (1) such physical inventory during a particular period, in which event, no second inventory shall be undertaken, unless the Lender reasonably determines, in the Lender's discretion, that a second inventory should be undertaken, in which event, it shall be undertaken by the Borrower.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty thirty (2030) days following the completion of such inventory.
(ii) The Borrower, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords .
(ciii) The AgentLender, in its discretion, if discretion from and after the Borrower is InDefaultoccurrence and during the continuance of any Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower)Lender determines.
(dc) The Agent contemplates conducting Four (4) appraisals If Senior Creditor obtains an appraisal of Collateral and does not share such appraisal with the Lender, the Lender may obtain one appraisal of the Collateral (in each eventprior to the Maturity Date, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002Lender.
(ed) The Agent Lender contemplates conducting Four Two (42) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's Lender’s discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such physical inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial ’s books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Lender may obtain appraisals of the Collateral (in each eventCollateral, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect from time to time conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional Lender. The Lender shall not conduct more than One (1) such appraisals during such period. The Borrower acknowledges and agrees that of the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, Collateral at the Borrower's expense) of the Borrower's books and records ’s expense during any Twelve (12) month period during which this Agreement is in effect, but unless an Event of Default has occurred and is continuing or an Increased Reporting Event has occurred and not been remedied, in which case the Lender in its discretion, may undertake additional such audits appraisals at the Borrower’s expense during such periodperiod as the Lender shall require.
(d) The Lender may conduct from time to time commercial finance field examinations of the Borrower’s books and records. The Lender may conduct One(1) commercial finance field examinations of the Borrower’s books and records at the Borrower’s expense during any Twelve (12) month period during which this Agreement is in effect, unless an Event of Default has occurred and is continuing or an Increased Reporting Event has occurred and not been remedied, in which case the Lender in its discretion, may conduct additional commercial finance field examinations (at the Borrower’s expense) during such period as the Lender shall require.
(e) The Lender from time to time (in all events, at the Borrower’s expense) may undertake “mystery shopping” (so called) visits to all or any of the Borrower’s business premises. The Lender shall provide the Borrower with a copy of any non company confidential results of such mystery shopping.
(f) The Lender agrees that prior to the occurrence of any Event of Default, the maximum amount of third party fees for which the Borrower shall be obligated to reimburse the Lender, cumulatively in any Twelve (12) month period during which this Agreement is in effect, is the aggregate of the following plus out of pocket expenses:
Appears in 1 contract
Samples: Loan and Security Agreement (Bakers Footwear Group Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent and each Lender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to Upon the Agent's discretionrequest from time to time, the Borrower shall obtain (in all events, at the Borrower's expense) physical counts and/or inventories of the Collateral, conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to required by the Agent.
(i) The Borrower , each of which physical counts and/or inventories shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken be observed by the Borrower) within Twenty (20) days following 's accountants. The Agent contemplates requiring the completion Borrower to conduct one such count and/or inventory for each of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in locations during each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect effect. The Borrower shall promptly furnish the Agent with copies of the results and adjusting entries for each such count or inventory. In the Agent's discretion, after the occurrence of an Event of Default, the Agent may undertake or cause the Borrower to undertake additional such counts or inventories during any such period.
(c) Upon the Agent's request from time to time, the Borrower shall permit t he Agent to obtain appraisals (in all events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(ed) The Agent contemplates conducting up to Four (4) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Agent from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Agent shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
(f) The maximum aggregate cost for the following which the Agent conducts or causes to be conducted in any Twelve (12) month period for which the Borrower shall reimburse the Agent shall not exceed the aggregate of following, it being understood, however, that (x) the maxima are subject to Borrower's having made available, as appropriate, upon reasonable prior notice and during normal business hours, its facilities, financial information, and personnel to facilitate completion in the ordinary course of the following and (y) no Event of Default having occurred and continuing (and that if either (x) or (y) is not fulfilled, there shall not be any such limitation on the aggregate of such costs):
(i) Appraisals pursuant to Section 5-11(c): $65,000.00 .
(ii) Commercial finance audits pursuant to Section 5-11(d): $20,000.00, plus travel expenses.
(iii) Mystery Shopping pursuant to Section 5-11(e): $1,000.00
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentCollateral Agent may, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the BorrowerBorrowers.
(b) The BorrowerBorrowers, at its their own expense, shall cause inventories to be conducted as follows (i) each Retail Store to not have less than one (1) physical count at each fiscal year end or on a cycle basis once during each twelve (12) month period (except in the case of Retail Stores experiencing high shrink (as determined by the Collateral Agent, in its discretion), in which case, such Retail Stores shall have not less than One two (2) physical counts on a cycle basis during each twelve (12) month period) and (ii) each Warehouse location to have not less than one (1) physical inventory to be undertaken at each fiscal year end, in each Twelve (12) month period during which case consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Collateral Agent's discretion) ), conducted by such inventory takers as are satisfactory to the Collateral Agent and following such methodology as may be satisfactory to the Collateral Agent.
(i) The Lead Borrower shall provide the Collateral Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Lead Borrower shall provide the Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Borrowers' books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The Collateral Agent, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Collateral Agent determines (each, at the expense of the BorrowerBorrowers).
(dc) The Collateral Agent contemplates conducting Four (4) appraisals of the Collateral (in each eventmay obtain appraisals, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect from time to time, conducted by such appraisers as are satisfactory to the Collateral Agent. The Collateral Agent contemplates obtaining four (4) appraisals during any twelve (12) months, but may obtain more in the event it 82 90 deems it reasonably necessary in its discretion. Prior to the occurrence of a Suspension Event, the costs of up to five (5) appraisals during any twelve (12) month period shall be at the Borrowers' expense. After the occurrence of a Suspension Event, the costs of all appraisals shall be at the Borrowers' expense.
(d) The Collateral Agent may conduct such commercial audits (at the Borrowers' expense) of the Borrowers' books and records as it, in its discretion, may undertake additional such appraisals during such perioddetermines to be necessary or desirable (at the Borrowers' expense). The Borrower acknowledges and agrees that Collateral Agent contemplates obtaining four (4) commercial audits during any twelve (12) months, but may obtain more in the first such appraisal event it deems it reasonably necessary in its discretion. Prior to the occurrence of a Suspension Event, the costs of up to five (5) commercial audits during any twelve (12) month period shall be performedat the Borrowers' expense. After the occurrence of a Suspension Event, received and approved by the Agent no later than April 1, 2002costs of all commercial audits shall be at the Borrowers' expense.
(e) The Collateral Agent contemplates conducting Four (4) commercial finance field examinations from time to time (in each eventall events, at the Borrower's Borrowers' expense) may undertake "mystery shopping" visits to all or any of the Borrower's books Borrowers' business premises. The Collateral Agent shall provide the Lead Borrower with a copy of any non-confidential results of such mystery shopping.
(f) Following the occurrence and records during the continuance of an Event of Default hereunder , the Tranche B Lenders may request in writing that the Collateral Agent obtain additional appraisals and conduct commercial audits. If the Collateral Agent has not initiated such an appraisal or audit within fifteen (15) Business Days of its receipt of such request, the Tranche B Lenders may obtain such appraisals and audits conducted by such appraisers and auditors as may be satisfactory to the Tranche B Lenders, the cost of which shall constitute Tranche B Debt and which appraisals and audits shall be coordinated by Agents. The Tranche B Lenders shall provide copies of any Twelve such appraisals and audits to the Agents and, upon written request, the Tranche C Agent.
(12g) month period during which this Agreement is in effectThe Collateral Agent shall provide copies of the foregoing to the Tranche A Lenders, but in its discretion, may undertake additional such audits during such periodthe Tranche B Lenders and the Tranche C Agent upon request.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Collateral Agent, at the reasonable expense of the BorrowerLoan Parties, may participate in and/or observe each scheduled physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrowerany Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Collateral Agent and following such methodology as may be reasonably satisfactory to the Collateral Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five forty-five (45) days following the completion of such inventory, shall provide the Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowerany Loan Party) and shall post such results to the Borrower's Loan Parties’ stock ledger and, as applicable to the Borrower's Loan Parties’ other financial books and recordsrecords .
(cii) The Collateral Agent, in its reasonable, good faith discretion, if the Borrower any Event of Default has occurred and is InDefaultcontinuing, may cause such additional inventories to be taken as the Collateral Agent determines (each, at the expense of the BorrowerLoan Parties).
(dc) The Collateral Agent contemplates conducting Four (4) may obtain appraisals of the Collateral (copies of which, subject to the approval of the appraiser, shall be provided to the Borrower promptly upon receipt thereof), from time to time (in all events, at the Loan Parties’ expense) conducted by Hilco Appraisal Services, LLC or such appraisers as are satisfactory to the Collateral Agent. The Collateral Agent may conduct up to two (2) appraisals (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's Loan Parties’ expense) of the Borrower's books and records Collateral during any Twelve twelve (12) month period during which this Agreement is in effect, but provided that if Excess Availability is less than $15,000,000 or an Event of Default has occurred and is continuing, the Agent, in its reasonable, good faith discretion, may undertake additional such appraisals (likewise at the Loan Party’s expense).
(d) The Collateral Agent may conduct up to two (2) commercial finance field examinations (in each event, at the Loan Parties’ expense) of the Loan Parties’ books and records during any twelve (12) month period during which this Agreement is in effect, provided that if Excess Availability is less than $15,000,000 or an Event of Default has occurred and is continuing, the Agent, in its reasonable, good faith discretion, may undertake additional such audits (likewise at the Loan Party’s expense) during such period.
(e) Notwithstanding anything to the contrary herein contained, upon the occurrence of any event or circumstance which is reasonably likely to have a material adverse effect on the business, operations, property, assets, or financial condition of any Loan Party, the limitations set forth in clauses (c) and (d) on the number of appraisals and commercial finance examinations which the Agent may cause to be undertaken shall be inapplicable and the Agent may undertake as many appraisals and commercial finance examinations with such frequency as the Agent may deem reasonably appropriate and necessary.
(f) The Collateral Agent from time to time may undertake “mystery shopping” (so-called) visits to all or any of the Loan Parties’ business premises.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One (1) physical inventory (which may include cycle counts of different locations at different times) to be undertaken in each Twelve during any Fifteen (1215) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's ’s discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days at the time the Borrower next delivers the reports required pursuant to Section 6.5 following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days at the time the Borrower next delivers the reports required pursuant to Section 6.5 following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's ’s stock ledger and, as applicable to the Borrower's ’s other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefaultIn Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four Two (42) appraisals of the Collateral (in each event, at the Borrower's ’s expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees Notwithstanding the foregoing, at any time Availability shall be less than $50,000,000 during any Twelve (12) month period during which this Agreement is in effect, the Agent contemplates conducting Three (3) such appraisals of the Collateral during such period; provided that the first Agent may, in its reasonable discretion, conduct such appraisal shall be performedadditional appraisals as it deems necessary (in each event, received and approved by at the Agent no later than April 1, 2002Borrower’s expense).
(e) The Agent contemplates conducting Four Two (42) commercial finance field examinations (in each event, at the Borrower's ’s expense) of the Borrower's ’s books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period. Notwithstanding the foregoing, at any time Availability shall be less than $50,000,000 during any Twelve (12) month period during which this Agreement is in effect, the Agent contemplates conducting Three (3) such field examinations of the Borrowers books and records during such period; provided that the Agent may, in its reasonable discretion, conduct such additional field examinations as it deems necessary (in each event, at the Borrower’s expense).
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender may, at the expense of the BorrowerObligors, may participate in and/or observe each physical inventory and any cycle count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the BorrowerObligors. The Obligors may not change the methodology to be followed in connection with the conduct of and reporting on the results of such inventory from the methodology employed by the Obligors as of the date of this Agreement, except for such changes in methodology as are reasonably necessitated by the Obligors migrating to a perpetual cost system.
(b) The BorrowerObligors, at its own their expense, shall cause each store location, warehouse, and distribution center to have not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which to be undertaken, and cycle counts, consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) effect, conducted by such inventory takers as are reasonably satisfactory to the Agent Lender and following such methodology as may be satisfactory to the Agentconsistent with Obligors’ past practices.
(ic) The Borrower Upon request of the Lender, the Obligors shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerObligors) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(iid) The Borrower, within Forty Five (45) days following the completion of such inventory, Obligors shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerObligors) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Obligors’ books and recordsrecords within sixty (60) days following the completion of such inventory.
(ce) The AgentLender, in its reasonable discretion, if following the Borrower is InDefaultoccurrence and during the continuance of a Event of Default, may cause such additional inventories to be taken as the Agent Lender reasonably determines (each, at the expense of the BorrowerObligors).
(df) The Agent contemplates conducting Four (4) Prior to the Borrower meeting the Audit and Appraisal Threshold, the Lender agrees to not conduct any appraisals of the Collateral Obligors’ Inventory. Thereafter and subject to the Borrower continuing to meet the Audit and Appraisal Threshold, Lender contemplates obtaining up to one (in each event, 1) appraisal (at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at expense of the Borrower's expense) of the Borrower's books and records ’s Inventory during any Twelve twelve (12) month period during which this Agreement is in effect, but in its reasonable discretion, may undertake obtain more in the event it deems it reasonably necessary, provided that, unless an Event of Default has occurred and is continuing, such additional appraisals shall be at the expense of the Lenders, and following the occurrence and during the continuance of an Event of Default such appraisals shall be at the expense of the Borrower. Each appraisal required by the Lender pursuant to this Agreement shall be conducted by such appraisers as are reasonably satisfactory to the Lender.
(g) Prior to the Borrower meeting the Audit and Appraisal Threshold, the Lender agrees to not conduct any commercial finance audits. Thereafter and subject to the Borrower continuing to meet the Audit and Appraisal Threshold, the Lender contemplates conducting up to two (2) commercial finance audits (each at the expense of the Borrower) of the Borrower’s books and records during any twelve (12) month period during which this Agreement is in effect, but in its reasonable discretion, may obtain more in the event it deems it reasonably necessary, provided that, unless an Event of Default has occurred and is continuing, such additional audits shall be at the expense of the Lenders, and following the occurrence and during the continuance of an Event of Default such audits during such periodshall be at the expense of the Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Charlotte Russe Holding Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAdministrative Agent and each Lender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One at least one (1), and on average, two (2) physical inventory inventories to be undertaken on a cycle count basis in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Administrative Agent's discretion) conducted by such inventory takers as are satisfactory to the Administrative Agent and following such methodology as may be satisfactory to the Administrative Agent.
(i) The On the Administrative Agent's request, the Borrower shall provide the Administrative Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventory.
(ii) The BorrowerOn the Administrative Agent's request, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Administrative Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The Administrative Agent, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Administrative Agent determines (each, at the expense of the Borrower).
(dc) The Upon the Administrative Agent's request from time to time, the Borrower shall permit the Administrative Agent contemplates conducting Four (4) to obtain appraisals of the Collateral (in each eventall events, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Administrative Agent no later than April 1, 2002.
(ed) The Administrative Agent contemplates conducting Four (4) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Administrative Agent from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Administrative Agent shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The BorrowerUpon the Lender's request from time to time, the Borrower shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrower's expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing counts and/or inventories of the scheduling of which inventories shall be subject to the Agent's discretion) Collateral, conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to required by the Agent.
(i) The Borrower Lender, each of which physical counts and/or inventories shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken be observed by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) 's accountants. The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if Lender will require the Borrower is InDefault, may cause to conduct two (2) such additional counts and/or inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in during each event, at the Borrower's expense) during any Twelve twelve (12) month period during which this the within Agreement is in effect conducted by such appraisers as are satisfactory to the Agenteffect, but in its discretion, may undertake additional such appraisals counts or inventories during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(ec) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain appraisals (in all events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Lender.
(d) The Agent Lender contemplates conducting Four three (43) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this the within Agreement is in effect, but in its discretion, may undertake additional such audits during such period. Absent a Suspension Event or Default, Lender agrees that audit charges payable by the Borrower will not exceed $13,750.00 per year plus expenses.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
Appears in 1 contract
Samples: Loan and Security Agreement (Sunbelt Nursery Group Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(b) The BorrowerBorrowers, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's Lender’s discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender.
(i) The Lead Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the any Borrower) within Twenty ten (2010) days following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the any Borrower) and shall post such results to the Borrower's Borrowers’ stock ledger and, as applicable to the Borrower's Borrowers’ other financial books and records.records ..
(ciii) The AgentLender, in its discretion, if the Borrower is InDefaultany Default exists, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the BorrowerBorrowers).
(dc) The Agent contemplates conducting Four Lender may, at the Borrowers’ expense, obtain up to three (43) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve twelve (12) month period during which this Agreement is in effect period, conducted by such appraisers as are satisfactory to the AgentLender. Notwithstanding the foregoing, but the Lender may cause additional appraisals to be undertaken as the Lender, in its reasonable discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees deems necessary or appropriate, provided that the first Borrowers shall not be obligated to pay for any such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002additional appraisals unless a Default has occurred.
(ed) The Agent Lender contemplates conducting Four two (42) commercial finance field examinations (in each event, at the Borrower's Borrowers’ expense) of the Borrower's Borrowers’ books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits (likewise at the Borrowers’ expense) during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower. The Borrower shall conduct not less than one (1) such count and/or inventory during any Twelve (12) month period, each of which counts and/or inventories shall be conducted by such inventory takers and shall employ such methodology as is acceptable to the Agent.
(b) The Following the occurrence of any Suspension Event, the Borrower, at its own expense, shall cause not less than One (1) physical inventory to be undertaken in each Twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to upon the Agent's discretionrequest, shall obtain, or shall permit the Agent to obtain (in all events, at the Borrower's expense) physical counts and/or inventories of the Collateral, conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to required by the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Borrower shall permit the Agent to obtain appraisals of the Borrower's Inventory, conducted by such appraisers as are satisfactory to the Agent. Provided that no Suspension Event has occurred, the Borrower shall be obligated to reimburse the Agent for not more than an aggregate of $27,500.00 of the fees charged for such appraisals conducted during the period commencing with the execution of this Agreement and ending on January 31, 1999, plus reasonable out of pocket expenses nor more than the aggregate fee cap set by the Agent, in its discretiongood faith, if for successive twelve (12) month periods (February 1 to January 31) thereafter (which fee cap shall be set by the Agent after surveying the then current fees routinely charged by appraisers satisfactory to the Agent plus reasonable out of pocket expenses), written notice of which fee cap shall be provided to the Borrower. In the event that a Suspension Event has occurred, the Borrower is InDefault, may cause such additional inventories to be taken as shall reimburse the Agent determines (each, at for the expense of fees and expenses for each such appraisal without regard to the Borrower)forgoing fee cap.
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve (12) month period during which this the within Agreement is in effect, but in its discretion, may undertake additional such audits during such period. The fees and expenses for a routine audit (by which it is meant an audit in connection with which the Borrower has made available appropriate financial information and personnel to facilitate its completion in the ordinary course) for which the Borrower shall be obligated to reimburse the Agent shall not exceed $7,000.00. In the event that a Suspension Event has occurred and/or in the event that the Borrower has not made available
(e) The Agent from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Agent shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping. Provided that no Suspension Event has occurred, the Borrower shall be obligated to reimburse the Agent for not more than an aggregate of $1,000.00 of the fees and expenses charged for such mystery shopping visits in any twelve (12) month period plus. In the event that a Suspension Event has occurred, the Borrower shall reimburse the Agent for the fees and expenses of all such visits without regard to the forgoing cap.
Appears in 1 contract
Samples: Loan and Security Agreement (Factory Card Outlet Corp)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent and each Lender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One Two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be reasonably satisfactory to the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The Agent, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(dc) The Upon the Agent's request from time to time, the Borrower shall permit the Agent contemplates conducting Four (4) to obtain appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretionprovided, may undertake additional however, that up to three such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal any 12 month period shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the expense and all such appraisals shall be at Borrower's books expense following the occurrence and records during any Twelve the continuance of an Event of Default hereunder.
(12d) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.Borrower shall permit the Agent to conduct up to Four
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the such Borrower.
(b) The BorrowerBorrowers, at its their own expense, shall cause not less than One (1) a physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretiondiscretion based on a material uncertainty of the value of the Collateral) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower Company shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) within Twenty ten (2010) days following the completion of such inventory.
(ii) The BorrowerCompany, within Forty Five thirty (4530) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) and shall post such results to the each Borrower's stock ledger and, as applicable to the such Borrower's other financial books and recordsrecords .
(c) The Agent, in its discretion, if the any Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the BorrowerBorrowers).
(d) The Agent contemplates conducting Four (4) may obtain appraisals of the Collateral (including but not limited to Eligible Real Estate Assets), from time to time (in each eventall events, at the Borrower's Borrowers' expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four up to four (4) commercial finance field examinations (in each event, at the Borrower's Borrowers' expense) of the Borrower's Borrowers' books and records during any Twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Agent, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrowerrequest of, a Loan Party.
(b) The BorrowerLoan Parties, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall to be subject to the Agent's discretion) conducted by such a national third party inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agenttaker.
(i) The Borrower Loan Parties shall provide the Agent with a copy of the preliminary final results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) within Twenty fourteen (2014) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrowera Loan Party) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Loan Party’s books and recordsrecords within forty-five (45) days following completion of such inventory.
(ciii) The Agent, in its discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of a Suspension Event or an Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(div) The Agent contemplates conducting Four Agent, in its reasonable discretion, may cause such additional inventories to be taken as it deems necessary or appropriate (4) appraisals each at the expense of the Collateral Agent and Lenders).
(in c) Upon the Agent’s request from time to time, the Borrower shall, and shall cause each eventGuarantor to, at permit the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect Agent to obtain appraisals conducted by such appraisers as are satisfactory to the Agent. Without limiting the foregoing, but the Agent may obtain periodic liquidation analyses with respect to the Collateral performed by Hilco Valuation Services, Great American Group or another valuation firm selected by the Agent; provided that the expense for any such appraisals shall be borne by the Agent and Lenders (except as provided in the following three sentences). The Agent may, in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that up to one (1) appraisal of the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each eventCollateral, at the Borrower's Loan Parties’ expense) of the Borrower's books and records during any Twelve , in each twelve (12) month period during which this Agreement period. Notwithstanding the foregoing, to the extent that Availability (Revolving Credit) is in effectat any time less than fifty percent (50%) of the lesser of the Commitments (Revolving Credit) or the Borrowing Base (Revolving Credit), but then the Agent may, in its discretion, undertake up to two (2) appraisals of the Collateral at the Loan Parties’ expense, in each subsequent twelve (12) month period. The Agent may undertake cause additional appraisals of the Collateral to be undertaken (i) as Agent, using its reasonable discretion, deems necessary or appropriate, at the Lenders’ expense, or (ii) if required by applicable Requirements of Law or if a Suspension Event or Event of Default has occurred and is continuing, at the expense of the Borrower.
(d) Upon the Agent’s request from time to time, the Borrower shall, and shall cause each other Loan Party to, permit the Agent to conduct commercial finance audits of the Borrower’s and the other Loan Parties’ books and records, provided that the expense for any such audits during such shall be borne by the Agent and Lenders (except as provided in the following three sentences). The Agent may, in its discretion, undertake up to one (1) audit at the Loan Parties’ expense, in each twelve (12) month period. Notwithstanding the foregoing, to the extent that Availability (Revolving Credit) is at any time less than fifty percent (50%) of the lesser of the Commitments (Revolving Credit) or the Borrowing Base (Revolving Credit), then the Agent may, in its discretion, undertake up to two (2) audits, at the Loan Parties’ expense, in each subsequent twelve (12) month period. The Agent may cause additional audits to be undertaken (i) as Agent, using its reasonable discretion, deems necessary or appropriate, at the Lenders’ expense, or (ii) if required by applicable Requirements of Law or if a Suspension Event or Event of Default has occurred and is continuing, at the expense of the Borrower.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentCollateral Agent may, at the expense of the BorrowerBorrowers, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the BorrowerBorrowers.
(b) The BorrowerBorrowers, at its their own expense, shall cause inventories to be conducted as follows (i) each Retail Store to not have less than one (1) physical count at each fiscal year end or on a cycle basis once during each twelve (12) month period (except in the case of Retail Stores experiencing high shrink (as determined by the Collateral Agent, in its discretion), in which case, such Retail Stores shall have not less than One two (2) physical counts on a cycle basis during each twelve (12) month period) and (ii) each Warehouse location to have not less than one (1) physical inventory to be undertaken at each fiscal year end, in each Twelve (12) month period during which case consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Collateral Agent's discretion) ), conducted by such inventory takers as are satisfactory to the Collateral Agent and following such methodology as may be satisfactory to the Collateral Agent.
(i) The Lead Borrower shall provide the Collateral Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Lead Borrower shall provide the Collateral Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrowers) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial Borrowers' books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The Collateral Agent, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Collateral Agent determines (each, at the expense of the BorrowerBorrowers).
(dc) The Collateral Agent contemplates conducting Four (4) appraisals of the Collateral (in each eventmay obtain appraisals, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect from time to time conducted by such appraisers as are satisfactory to the Collateral Agent. The Collateral Agent contemplates obtaining four (4) appraisals during any twelve (12) months, but may obtain more in the event it deems it reasonably necessary in its discretion. Prior to the occurrence of a Suspension Event, may undertake additional such the costs of up to five (5) appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.shall be at the Borrowers'
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The BorrowerUpon the Lender's request from time to time after reasonable notice (except after the occurrence of an Event of Default), the Borrower shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrower's expense) financial or SKU based physical counts and/or inventories of the Collateral, conducted by such inventory takers as are satisfactory to the Lender and following such methodology as may be required by the Lender, each of which physical counts and/or financial or SKU based inventories shall cause not less than One be observed by the Borrower's accountants. The Lender will require the Borrower to conduct one (1) physical such count and/or inventory to be undertaken in during each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agenteffect, but in its discretion, may undertake additional such appraisals counts or inventories during such period. The Additionally, Lender shall require that Borrower acknowledges and agrees conduct a physical count/inventory of at least one-third of the stores (the selection of which stores to be included subject to Lender's approval) by the end of each fiscal June of each year (the "Mid-Year Count"). Lender can require that the first such appraisal balance of the stores be counted at Borrower's expense in the event that the resultant shrink reflected in the Mid-Year Count exceeds the shrinkage accrual in Borrower's General Ledger. The draft or unaudited results of all inventories or counts shall be performedfurnished to Lender immediately thereafter and final, received reconciled results within ten (10) days of the taking of such inventories or counts. The Lender reserves the right to seek directly unaudited or draft results from such inventory takers. The foregoing notwithstanding, during the fiscal year 2000, Borrower shall obtain an SKU based fiscal count in connection with the initial funding of the loan and approved by shall also conduct a count and/or inventory as of the Agent no later than April 1, 2002end of the current fiscal year.
(ec) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain appraisals (in all events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Lender.
(d) The Agent Lender contemplates conducting Four three (43) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such periodperiod (provided, however, absent an Event of Default, such additional audits in excess of three (3) audits, shall be at Lender's expense). The current audit fees for a field examination conducted by the Lender are Eight Hundred ($800) Dollars per man, per day, plus expenses. The Borrower acknowledges that the Lender will conduct its first field examination within ninety (90) days of the date hereof.
(e) In the event that Borrower does not undertake "mystery shopping" (so-called) and share the results of the same with Lender, Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping upon Borrower's written request.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The BorrowerUpon the Lender's request from time to time, the Borrower shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrower's expense) financial or SKU based physical counts and/or inventories of the Collateral, conducted by such inventory takers as are satisfactory to the Lender and following such methodology as may be required by the Lender, each of which physical counts and/or financial or SKU based inventories shall cause not less than One be observed by the Borrower's accountants. The Lender will require the Borrower to conduct two (12) physical inventory to be undertaken in such counts and/or inventories during each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agenteffect, but in its discretion, may undertake additional such appraisals counts or inventories during such period. The draft or unaudited results of all inventories or counts shall be furnished to Lender immediately thereafter and final, reconciled results within ten (10) business days of the taking of such inventories or counts. The Borrower acknowledges and agrees that the first Lender is entitled to request and receive directly from the inventory taker the unaudited or draft results of any such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002inventory or audit.
(ec) Upon the Lender's request from time to time, the Borrower shall permit the Lender to obtain appraisals (in all events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Lender.
(d) The Agent Lender contemplates conducting Four three (43) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The Administrative Agent, at the reasonable expense of the BorrowerBorrowers (but in no event to exceed $25,000.00 per annum), may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the any Borrower.
(b) The BorrowerBorrowers, at its their own expense, shall cause not less than One one (1) physical inventory of each of their store locations and delivery centers to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect and shall cause cycle counts of their Power Max locations to be undertaken in a manner consistent with their practices in effect on the Closing Date (the spacing of the scheduling of which inventories shall or such other procedures as may be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be satisfactory to the Administrative Agent).
(i) The Lead Borrower shall provide the Administrative Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and cycle count within Twenty thirty (2030) days following the completion of such inventory.
(ii) The Lead Borrower, within Forty Five forty-five (45) days following the completion of such inventoryphysical inventory or cycle count, shall provide the Administrative Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) or cycle count and shall post such results to the Borrower's stock ledger Borrowers' perpetual inventory system and, as applicable to the Borrower's Borrowers' other financial books and records.
(ciii) The Administrative Agent, in its reasonable discretion, if the Borrower is InDefaultany Default exists, may cause such additional inventories to be taken as the Administrative Agent reasonably determines (each, at the expense of the BorrowerBorrowers).
(dc) The Administrative Agent contemplates conducting Four (4) may obtain appraisals of the Collateral Collateral, from time to time (in each eventall events, at the Borrower's Borrowers' expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are reasonably satisfactory to the Administrative Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that Administrative Agent shall not conduct more than one (1) appraisal of the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each eventCollateral, at the Borrower's expense) of the Borrower's books and records Borrowers' expense (which expense will not exceed $50,000.00 in any twelve month period plus all reasonable out-of-pocket expenses), during any Twelve twelve (12) month period during which this Agreement is in effect, but unless an Event of Default shall exist, in its discretion, which case the Administrative Agent may undertake additional such audits appraisals (at the Borrowers' expense) during such period as the Administrative Agent shall reasonably require.
(d) The Administrative Agent contemplates conducting two (2) commercial finance field examinations (in each event, at the Borrowers' expense, which expense will not exceed $30,000.00 in any twelve month period, plus all reasonable out-of-pocket expenses) of the Borrowers' books and records during any twelve (12) month period during which this Agreement is in effect, unless an Event of Default shall have occurred and be continuing, in which case the Administrative Agent may undertake such additional audits (at the Borrowers' expense) during such period as the Administrative Agent shall reasonably require.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The BorrowerUpon the Lender's request from time to time, the Borrower shall obtain, or shall permit the Lender to obtain (in all events, at its own the Borrower's expense) financial or SKU based physical counts and/or inventories of the Collateral, conducted by such inventory takers as are satisfactory to the Lender and following such methodology as may be required by the Lender, each of which physical counts and/or financial or SKU based inventories shall cause not less than One be observed by the Borrower's accountants. The Lender will require the Borrower to conduct two (12) physical inventory to be undertaken in such counts and/or inventories during each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are satisfactory to the Agent and following such methodology as may be satisfactory to the Agent.
(i) The Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial books and records.
(c) The Agent, in its discretion, if the Borrower is InDefault, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(d) The Agent contemplates conducting Four (4) appraisals of the Collateral (in each event, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agenteffect, but in its discretion, may undertake additional such appraisals counts or inventories during such period. The Borrower acknowledges and agrees that the first such appraisal draft or unaudited results of all inventories or counts shall be performed, received and approved by furnished to Lender within five (5) business days of the Agent no later than April 1, 2002taking of such inventories or counts.
(ec) Upon the Lender's reasonable request from time to time, the Borrower shall permit the Lender to obtain appraisals (in all events, at the Borrower's expense) conducted by such appraisers as are satisfactory to the Lender.
(d) The Agent Lender contemplates conducting Four three (43) commercial finance field examinations audits (in each event, at the Borrower's expense) of the Borrower's books and records during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional such audits during such period.
(e) The Lender from time to time (in all events, at the Borrower's expense) may undertake "mystery shopping" (so-called) visits to all or any of the Borrower's business
Appears in 1 contract
Samples: Loan Agreement (Crown Books Corp)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of of, and at the Borrowerrequest of, the Borrower or AWI.
(b) The BorrowerBorrower and AWI, at its their own expense, shall cause not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) conducted by such inventory takers as are reasonably satisfactory to the Agent Lender and following such methodology as may be reasonably satisfactory to the AgentLender.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrower or AWI) within Twenty fourteen (2014) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the BorrowerBorrower or AWI) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrowerand AWI's other financial books and recordsrecords within forty-five (45) days following completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence, and during the continuance, of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four Upon the Lender's request from time to time, the Borrower shall, and shall cause AWI to, permit the Lender to obtain appraisals (4) appraisals except as set forth in the last sentence of the Collateral this subsection (in each eventc), at the BorrowerLender's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the AgentLender and using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement. Without limiting the foregoing, but in its discretionthe Lender may obtain periodic Inventory liquidation analyses performed by Hilco/Great American Group or another liquidation analysis firm selected by the Lender. After the occurrence and during the continuance of an Event of Default, may undertake additional all such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, undertaken at the Borrower's and AWI's expense.
(d) Upon the Lender's request from time to time, the Borrower shall, and shall cause AWI to, permit the Lender to conduct commercial finance audits of the Borrower's and AWI's books and records (except as set forth in the last sentence of this subsection (d), at the Lender's expense) using a methodology similar in scope and nature as was undertaken on behalf of the Lender prior to the effectiveness of this Agreement. After the occurrence and during any Twelve (12) month period during which this Agreement is in effectthe continuance of an Event of Default, but in its discretion, may undertake additional all such audits during such periodshall be undertaken at the Borrower's and AWI's expense.
Appears in 1 contract
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentLender, at the expense of the Borrower, may participate in and/or observe each physical count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower.
(b) The Borrower, at its own expense, shall cause not less than One two (12) physical inventory inventories to be undertaken in each Twelve twelve (12) month period during which this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's Lender’s discretion) conducted by such inventory takers as are satisfactory to the Agent Lender and following such methodology as may be satisfactory to the AgentLender.
(i) The Borrower shall provide the Agent Lender with a copy of the preliminary results of each such physical inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty twenty (20) days following the completion of such inventory.
(ii) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent Lender with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial ’s books and recordsrecords within thirty (30) days following the completion of such inventory.
(ciii) The AgentLender, in its discretion, if following the Borrower is InDefaultoccurrence of a Suspension Event, may cause such additional inventories to be taken as the Agent Lender determines (each, at the expense of the Borrower).
(dc) The Agent contemplates conducting Four (4) Lender may obtain appraisals of the Collateral (in each eventCollateral, at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect from time to time conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional Lender. The Lender shall not conduct more than One (1) such appraisals during such period. The Borrower acknowledges and agrees that of the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, Collateral at the Borrower's expense) of the Borrower's books and records ’s expense during any Twelve (12) month period during which this Agreement is in effect, but unless an Event of Default has occurred and is continuing or an Increased Reporting Event has occurred and not been remedied, in which case the Lender in its discretion, may undertake additional such audits appraisals at the Borrower’s expense during such periodperiod as the Lender shall require.
(d) The Lender may conduct from time to time commercial finance field examinations of the Borrower’s books and records. The Lender may conduct One(1) commercial finance field examinations of the Borrower’s books and records at the Borrower’s expense during any Twelve (12) month period during which this Agreement is in effect, unless an Event of Default has occurred and is continuing or an Increased Reporting Event has occurred and not been remedied, in which case the Lender in its discretion, may conduct additional commercial finance field examinations (at the Borrower’s expense) during such period as the Lender shall require.
(e) The Lender from time to time (in all events, at the Borrower’s expense) may undertake “mystery shopping” (so-called) visits to all or any of the Borrower’s business premises. The Lender shall provide the Borrower with a copy of any non-company confidential results of such mystery shopping.
(f) The Lender agrees that prior to the occurrence of any Event of Default, the maximum amount of third party fees for which the Borrower shall be obligated to reimburse the Lender, cumulatively in any Twelve (12) month period during which this Agreement is in effect, is the aggregate of the following plus out of pocket expenses: Audit $ 10,000.00 $ 25,000.00 Appraisals $ 22,000.00 $ 45,000.00 In the event of and following the occurrence and during the continuance of any Event of Default, there shall not be any “cap” on such fees.
(f) Article 5 of the Loan Agreement is amended by adding a new subsection 5:5-5(a)(i)(D) which reads as follows:
Appears in 1 contract
Samples: Loan and Security Agreement (Bakers Footwear Group Inc)
INVENTORIES, APPRAISALS, AND AUDITS. (a) The AgentAgent may, at the expense of the Borrower, may participate in and/or observe each physical inventory and any cycle count and/or inventory of so much of the Collateral as consists of Inventory which is undertaken on behalf of the Borrower. The Borrower may not change the methodology to be followed in connection with the conduct of and reporting on the results of such inventory from the methodology employed by the Borrower as of the date of this Agreement, except for such changes in methodology as are reasonably necessitated by the Borrower migrating to a perpetual cost system.
(b) The Borrower, at its own expense, shall cause each store location, warehouse, and distribution center to have not less than One one (1) physical inventory to be undertaken in each Twelve twelve (12) month period during which to be undertaken, and cycle counts, consistent with current practice, while this Agreement is in effect (the spacing of the scheduling of which inventories shall be subject to the Agent's discretion) ), conducted by such inventory takers as are reasonably satisfactory to the Agent and following such methodology as may be reasonably satisfactory to the Agent.
(ic) The Upon request of the Agent, the Borrower shall provide the Agent with a copy of the preliminary results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) within Twenty ten (2010) days following the completion of such inventoryafter its completion.
(iid) The Borrower, within Forty Five (45) days following the completion of such inventory, Borrower shall provide the Agent with a reconciliation of the results of each such inventory (as well as of any other physical inventory undertaken by the Borrower) and shall post such results to the Borrower's stock ledger and, as applicable to the Borrower's other financial ’s books and recordsrecords within thirty (30) days following the completion of such inventory.
(ce) The Agent, in its discretion, if following the Borrower is InDefaultoccurrence and during the continuance of a Event of Default, may cause such additional inventories to be taken as the Agent determines (each, at the expense of the Borrower).
(df) The Prior to the Borrower meeting the Inventory Appraisal Threshold, the Agent contemplates conducting Four (4) agrees to not conduct any appraisals of the Collateral Borrower’s Inventory except for one (in each event, 1) appraisal (at the Borrower's expense) during any Twelve (12) month period during which this Agreement is in effect conducted by such appraisers as are satisfactory to the Agent, but in its discretion, may undertake additional such appraisals during such period. The Borrower acknowledges and agrees that the first such appraisal shall be performed, received and approved by the Agent no later than April 1, 2002.
(e) The Agent contemplates conducting Four (4) commercial finance field examinations (in each event, at expense of the Borrower's expense) of the Borrower's books ’s Inventory following the Closing Date in connection with the Agent’s completion of its Post-Closing Due Diligence. Thereafter and records upon the Borrower meeting the Inventory Appraisal Threshold, Agent contemplates obtaining up to one (1) appraisal (at the expense of the Borrower) of the Borrower’s Inventory during any Twelve twelve (12) month period during which this Agreement is in effect, but in its discretion, may undertake additional obtain more in the event it deems it reasonably necessary in its discretion, provided that, prior to the occurrence of an Event of Default, such appraisals shall be at the expense of the Lenders and following the occurrence of an Event of Default such appraisals shall be at the expense of the Borrower. Each appraisal required by the Agent pursuant to this Agreement shall be conducted by such appraisers as are satisfactory to the Agent.
(g) The Agent contemplates conducting two (2) commercial finance audits (each at the expense of the Borrower) of the Borrower’s books and records during any twelve (12) month period during which this Agreement is in effect, but in its discretion, may obtain more in the event it deems it reasonably necessary in its discretion, provided that, while no Event of Default has occurred and is continuing, such audits shall be at the expense of the Lenders and following the occurrence and during the continuance of an Event of Default such periodaudits shall be at the expense of the Borrower.
(h) The Agent contemplates conducting one (1) appraisal (at the Borrower’s expense) of the Borrower’s Eligible Leaseholds during any twelve (12) month period during which this Agreement is in effect, but in its discretion, may obtain more (at the Borrower’s expense) in the event it deems it reasonably necessary in its discretion
Appears in 1 contract
Samples: Loan and Security Agreement (Wild Oats Markets Inc)
